
    Adolph Sussman, Respondent, v. John L. Mason, Appellant.
    (City Court of Brooklyn
    General Term,
    October, 1894.)
    A complaint in an action for the return of securities given to secure a loan after tender of the amount due, which alleges that “ there is due the defendant, on account of said loan, not more than ” a specified sum, “which sum plaintiff tendered defendant” on a date named, “and demanded a return of said certificates and notes,” does not state a cause of action, as it fails to show how much was due at the date of the tender, the allegation as to the amount due referring to the date of the verification of the complaint.
    Appeal from interlocutory judgment overruling demurrer to the complaint.
    
      W. G. Havens, for appellant.
    
      S. S. Hemvngwa/y, for respondent.
   Clement, Ch. J.

The summons in this action is dated January 31, 1894, and the complaint was verified on the same day. The plaintiff claims in his complaint that between May 23 and June 26, 1892, the defendant loaned him the sum of $2,000 to be repaid with legal interest, aúd that, as security for said loan, he (plaintiff) deposited with defendant a certificate for twenty-nine shares of stock of the Keystone Savings & Investment Association, which certificate and certain promissory notes made by plaintiff to defendant were to be returned upon payment of the said sum of $2,000 and interest; that there is due the defendant, on account of said loan, not more than $1,050, which sum plaintiff tendered defendant on the 27tli day of December, 1893, and demanded a return of said certificate and notes. The plaintiff demands judgment for the return of the certificate and notes, and for such other relief as may be just.

The action is based on the theory of a tender of the amount due and a refusal to deliver the collaterals. It is not clear that the statement in the complaint, “ that there is due the the defendant, on account of said loan, not more than $1,050,” is an allegation of a fact. It would appear to be a conclusion of law. In view of another point, it is not necessary to decide the question. There is nothing in the complaint to show how much was due at the date of the tender, December 27, 1893. The allegation, “ that there is due the defendant, on account of said loan, not more than $1,050,” refers to the date of the verification of the complaint, January 31, 1894.

We are, therefore, of opinion that the complaint did not state a cause of action, and that the interlocutory judgment on demurrer should be reversed, with costs of appeal and at Special Term,- with leave to plaintiff to serve an amended complaint on payment of such costs.

Van Wyck, J., concurs.

Judgment reversed, with costs of appeal and at Special Term, with leave to serve amended complaint on payment of such costs.  