
    Glover v. Silverman et al.
    (New York Superior Court—General Term,
    December, 1893.)
    Allegations of usury in the note which a chattel mortgage was given to secure are sufficient to sustain an action to declare such note and mortgage void and canceled, and for an injunction to restrain interference with the mortgaged property.
    A. complaint setting forth facts showing usury in the note for which a chattel mortgage was given, supported by affidavits which also show that the defendants have levied upon a portion of the goods under ' alleged foreclosure proceedings, refuse to allow plaintiff to see them and threaten to take and dispose of the other goods in plaintiff’s possession, is sufficient to justify a conclusion that plaintiff has no adequate remedy at law.
    Appeal from order of Special Term continuing an injunction pendente lite.
    
    Action for an injunction to restrain defendants from taking or interfering with certain furniture covered by a chattel mortgage, and to declare void and canceled said mortgage and a promissory note to secure which the mortgage was given.
    The complaint alleges that the note was usurious, and plaintiffs affidavits on the motion for the temporary injunction showed that defendants had taken possession of a part of the furniture under alleged foreclosure proceedings ; that plaintiff was informed that they were at an auction room, and that she could have them on páyment of a sum in excess of the note; that defendants refused to let her see them or show them to a prospective, purchaser; that they threaten to remove the remainder of the furniture from her house, and that such furniture is worth $4,000, while the note was for $200.
    
      Warner & Crawford, for plaintiff (respondent).
    
      Thornall, Squiers & Pierce (Franklin, Pierce of counsel), for defendants (appellants).
   Gildersleeve, J.

This action is for an injunction restraining the defendants from taking or in any way interfering with certain furniture covered by a chattel mortgage, given by plaintiff to the defendant, the Commercial Credit Company. The plaintiff also asks in her complaint that the promissory note, the payment of which said mortgage was given to secure, together with said mortgage, be brought into court, declared void and canceled on the ground of usury. The first alleged cause of action charges fraud in inducing the execution and delivery of the mortgage. This" cause of action is without merit, for the reason that the plaintiff signed both the mortgage and the schedule, pnd the law presumes that she knew and understood their contents. The allegations of usury, set forth in the second alleged cause of action, are sufficient to sustain the action.

The appeal under consideration is from an order of the Special Term continuing an injunction pendente lite, restraining the defendants from interfering in any manner whatsoever with the furniture of the plaintiff covered by the mortgage. At the time the order was made no answer to the complaint had been served by defendants or either of them, nor was any answer read upon the argument in the court below in opposition to the motion. It is now urged that the order was improperly granted, for the reason that it does not appear in the complaint “ that the plaintiff has not an adequate remedy at law.” The question of remedy was not raised by answer or demurrer. The decision of the court below seems to be in accord with the rule laid down in Palmer v. Jones, 69 Hun, 240. See, also, Ehrgott v. Forgotston, 17 N. Y. Supp. 381. It did not appear at the time of the argument, or before the decision under consideration was made, what position the defendants would take, either by answer or demurrer, on the question of remedy.

From an examination of the defendants’ affidavits, arid especially the exhibits to which they refer, it is manifest that the plaintiff is mistaken as to the amount of the note and the name of the payee, and also as to the maker of the check for $150. These matters were fully within the knowledge of the defendants, and the apparent discrepancies worked no injuries to the defendants, nor did they substantially affect the merits of the plaintiff’s claim.

The facts set forth in the second alleged cause of action, supported by the affidavits read upon the motion, meet the requirements imposed by principle and authority that warrant the court in affording equitable relief. Moreover, if it can be said that the question of “ adequate remedy at law ” has been properly raised, there was sufficient before the court below to justify the conclusion that the plaintiff had no adequate remedy at law. Were the defendants permitted to proceed under the mortgage and sell the furniture, the injury done to the plaintiff could not easily be estimated in dollars and cents.

The order appealed from must be affirmed, with ten dollars costs and disbursements.

Fkeedmatt, J., concurs.

Order affirmed, with ten dollars costs and disbursements.  