
    Benjamin Pritz and Others, Doing Business as Copartners under the Firm Name of Strauss, Pritz & Co., Respondents, v. Patrick Jones and Others, Appellants, Impleaded with John Belford, Defendant.
    First Department,
    February 15, 1907.
    Debtor and creditor—judgment creditor’s action to set aside sale of personalty-right of insolvent incompetent to pay debts — pleading — failure to show transfer in fraud of creditors — when judgment creditor of incompetent may rescind sale induced by fraud — restitution in equity — failure to show sale in violation of chapter 569 of the Laws of 1904 — practice — only one judgment on demurrer authorized.
    The complaint in a judgment creditor’s action in substance alleged that one B., the judgment debtor, had a lease of a saloon with a right of renewal from year to year so long as he purchased beer from one D., who was owner of the building and fixtures; that D. required B. to assume a fictitious mortgage on the premises; that B. was mentally disordered by drink and incompetent intelligently to transact business or enter into contracts; that D. notified B. he must sell out and vacate, whereupon, while intoxicated, he sold his business and good will for §1,950 to the defendants J, and M., which sale was consummated in the office of D.; that the actual value of the business sold was §3,000; that the money received by B. was mostly expended in paying his debts," and that the transaction left him totally insolvent. These transactions were prior to ■ the plaintiff’s, judgment against B. for goods sold.
    
      Held, that the complaint failed to state a cause of action against the defendant D., as it was not alleged that D. had possession of any of the property transferred byB.;
    That even though one be incompetent he may pay his debts and his incompetency is not ground for setting aside the transaction;
    That as the alleged fictitious mortgage was not a lien upon anything owned by B. or transferred by him, the judgment creditor was not entitled to a cancellation thereof;
    That as against the defendants J. and M., who purchased the business, the complaint stated no cause of action to set aside the transfer as fraudulent against creditors, there being no allegation, of intent to hinder, delay or defraud creditors on the part of B.;
    That although allegations of fraudulent intent are not absolutely necessary where facts showing intent are set forth, the facts alleged must reasonably lead to a conclusion'of fraudulent intent which fairly excludes any other hypothesis;
    That an insolvent may sell his property in good faith without fraudulent intent, although the sale places the property beyond the reach of creditors;
    That the presumptions growing out of the Bankruptcy Act do not obtain in an ordinary judgment creditor’s action;
    
      
      Held, further, that the allegations that B., by reason of drink, was not in fit com dition to transact business, and was unable to understand his acts or the effect thereof,' was not a sufficient allegation of insanity, to enable a j udgment creditor to recover the property sold as standing in the shoes of the seller; Nevertheless, it is held that treating the complaint as alleging fraud perpetrated upon the seller by procuring his intoxication, the. judgment creditor must be considered as standing in the shoes of the seller and entitled to equal right to rescind the sale if fraudulent;
    That the facts alleged showed that the seller was entitled in equity to rescind "the transaction on the ground of fraud, and that this éq'uitable right was a :chose in action which a judgment creditor may reach by a suit in equity;
    That although he who seeks equity must do equity, and in rescinding a sale return the amount paid to the vendee,-and although in. equity an actual tender, before suit is not necessary, but the plaintiff must offer restoration in the complaint, the offer of restitution in the pleading is not a prerequisite to the institution of the suit-but a condition- for granting relief, and the complaint may be sustained where the plaintiff prays for general relief agreeable to. the cause. ’
    That although the complaint alleged that the merchandise was sold in bulk, not-in the, ordinary course of trade, without filing an inventory thereof five days before the sale, and without making inquiry as to the names and addresses of . creditors,, and without notification to creditors, a cause of action was not stated under chapter 569 of the Laws of 1904;
    
      Held, further, that when several defendants demur only one decision is authorized, which should.determine their several rights.
    Ingraham, J., dissented in part, with opinion.
    Appeal by the defendants, Patrick- Jones and another, and by the defen dant-Peter Doelger, respectively, from two separate interlocutory judgments of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk, of -the county of New York on the 31st day of July, 1906, upon the decision of the' court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrers to the complaint. .. ~
    
      Abraham Benedict, for the appellants.
    
      Allan R. Campbell of counsel [Hyman, Campbell & Eaton, attorneys], for the respondents.
   Clarke, J.:

Appeals from two interlocutory-judgments overruling the defendants’ démurrers to the complaint.

The complaint alleged that plaintiffs recovered a judgment against defendant Belford for the sum of $1,119.37 on November 10,1905, winch was immediately docketed and execution issued thereon to the sheriff, who returned the same unsatisfied on November twenty-third ; that on October 18, 1905, and for a long period prior thereto defendant Belford had a saloon and café in the city of New York and was engaged in the liquor business.

That Belford had a lease of said saloon from Hay 1, 1905, to Hay 1, 1906, and -the right to renew said lease from year to year so long as he purchased beer from defendant Doelger. That the building and fixtures were owned by Doelger, who rented them to Belford. That Doelger, though the owner of the premises, required Belford to assume a mortgage of $10,000 thereon, which mortgage was wholly fictitious and without consideration; that throughout the year 1905, and prior to that time, Belford had been a hard drinker, and that in July or August, 1905, he received a severe blow upon the head which seriously injured his brain and deranged his mind, and “ by reason of the aforesaid injury and the aforesaid drinking, at no time since the date of said injury has said Belford been in fit condition to transact any business or to intelligently pass upon any business proposition or to enter into contracts.” ■

That on October 17, 1905, defendant Doelger notified Belford that he must sell out and vacate forthwith, and that Doelger refused to-accept another tenant who had made Belford an offer of $3,500 for the place. That- on the next day a stranger called upon Belford, and having given the latter several drinks of'whisky and rendered him totally unfit to discuss or consider any business propositions or to understand his acts, offered him $50 cash if he would sell his place, equipment, business and good will for $1,950, and that Belford accepted the proposition and signed. a contract embodying its terms. That thereupon the stranger notified Belford that he was acting as agent in the matter for defendants Jones and Horan, and that the transaction would be closed at the office of the defendant Doelger, where said Belford would receive $1,900, and sign a bill of sale. That continuously after signing this contract Belford steadily drank alcoholic beverages, and that at no time between the signing of the Contract and October 21, 1905, was he able to comprehend the nature of his acts, or the effect thereof, which fact was apparent and well known to every person with whom he came in contact. That' on October 20, 1905, Belfordcalled - at the office of Doelger, and a representative of the latter then notified him that he owed, said Doelger the sum of $1,197, and thereupon gave to Belford Doelger’s check for $703, the difference between the amount of the alleged indebtedness, and the price agreed upon in the contract. That Belford thereupon spent part of the proceeds of said cheólc and paid certain loans with the balance; that on the night of October 20,1905, in -the presence of a representative. of the defendant Doelger, defendants Jones and Moran took possession of said premises. ;. ; ■

That throughout these negotiations Belford was indebted to an amount exceeding $3,000,. in addition to the claims of the defendant Doelger, ánd the claims for borrowed money, paid with the proceeds of the check. That it was well known to all of the defendants that Belford was so indebted, and that the transaction in question would leave him totally insolvent, and- that Belford’s creditors would be deprived thereby of all means'of collecting their debts'. That “ the place,' location, equipment, business .and good will of said Belford were at the time of said transaction, worth at least the sum of $3,000j as was well known to defendants.”'

That the sale by Belford was a sale of Belford’s stock of merchandise in bulk and otherwise than in the ordinary course of trade, and that said Belford-, Jones and Moran did not at least five days before said sale make a full inventory of said property transferred, nor did they'make inquiry of Belford as to the pames and places of residence of each of his creditors, arid obtain from him a written answer to said inquiries, nor did they notify each of Belford’s creditors of the sale.

The complaint prayed that the transaction in question be'declared fraudulent and void as against plaintiffs; that said transaction be set aside and a receiver appointed; 'that the mortgage of" $10,000 be. canceled, or, in the alternative, that the transaction be declared fraudulent and void, and that defendants Doelger,. Jones and Moran be compelled to pay to plaintiffs the value of the assets transferred and the profits of conducting the business from the time of the alleged sale, or, in case the relief so prayed for could not be granted, then that defendants Doelger, Jones and Moran pay to-plaintiffs, as creditors of Belford, the sum of $1,950.

1. Appellant Doelger contends that the complaint states no ¡cause of action against him.

This contention is well founded." The utmost that can be inferred from the complaint is that Doelger probably furnished to Jones and Moran, upon some terms not disclosed the money with which the latter paid Belford for the transfer of the business. It is not alleged that Doelger has qr ever had in his possession any of the property of Belford so transferred. Assuming for the moment that the complaint alleges Belford’s incompetency, the mere fact that while incompetent he has paid to Doelger a debt owing to him is not a ground for setting aside the transaction. An incompetent may pay his just debts as well as one who is competent. I fail to see how plaintiff is entitled to cancellation of the $10,000 mortgage which it is alleged Doelger caused Belford to assume. This mortgage does not appear to be a lien upon anything which was ever owned by Belford or transferred by him. The complaint states that the building and fixtures were owned by Doelger and that the mortgage was “ upon said premises.” There is nothing to show that Doelger is attempting to enforce any claim for $10,000 or any other sum as secured by said mortgage.

2. Appellants contend that the complaint states no cause of action against Jones and Moran for a transfer fraudulent as against creditors. Deduced to its ultimate analysis in this-regard, the complaint alleges .that Jones and Moran, knowing that Belford was insolvent, bought from him a business worth $3,000 for $1,950, the result being tlmt beyond the purchase price Belford would have nothing with which to pay creditors to whom he owed $5,000,

In order to set aside a transfer upon the ground that it was intended thereby to hinder and defraud creditors, it must appear that such intention existed upon the part, both of the transferor and transferee. There is in this complaint no allegation of an intent to hinder, delay or defraud creditors on the part of Belford, the transferor, nor that Jones and Moran, the transferees, purchased with intent to assist Belford in perpetrating a fraud upon his creditors. Indeed it is not alleged that the plaintiffs were creditors at the time of the transaction complained of. While the allegation of fraudulent intent is not an absolute necessity where facts clearly showing such intent are set forth, plaintiff cannot ask a court to impute a fraudulent intent when lie makes no assertion thereof,.and. the .facts stated do not compel the inference. Fraud must be shown.. It is usually deduced from facts which naturally' and logically indicate its existence. The circumstances relied upon must be. such:as - fairly and reasonably lead to the conclusion of a fraudulent intent and fairly and reasonably exclude any other hypothesis. (Shultz v. Hoagland, 85 N. Y. 464; Lopez v. Campbell, 163 id. 340.)

Belford, although insolvent, had a right to sell liis property provided lie did so in good faith and without fraudulent intent, although the effect of sale was to place the property beyond the reach of his ■ creditors. There is nothing to show the existence of. a fraudulent intent as to his creditors. For a business only alleged to be worth $3,000, the value thereof, as must be apparent, mostly consisting of the good' will, defendants paid $1,950 so far as appears- before Belford became-indebted to the plaintiffs." Belford did not retain pos- : session of the property after the transfer.. Fo credit was extended upon an apparent possession which did not in reality exist. There ■ was no colorable assignment under which Belford remained the. real ‘ owner. It is affirmatively alleged that Jones and Horan took pos-, session of the premises at once. It is. also alleged that Belford .' applied almost all "of tlie purchase price received by him to the payment of his debts.

We think as between subsequent creditors and Jones and Moran,, nothing is shown to" warrant setting aside the transfer to them as fraudulent.- There is nothing alleged which shows any intent on their part .to hinder, defraud or delay these plaintiffs. This action, is not in the' bankruptcy court, and no presumptions growing out of the provisions of the bankruptcy statute áre.to be indulged: in.

. 3- Can the judgment creditors maintain the action to set aside the transfer, not upon the ground that it was fraudulent as against . . creditors, but as standing in the shoes of Belford to recover property - wrongfully obtained from him? .The first suggestion is that he was incompetent to make a contract. It seems to be .established that -the.contracts of an insane person are voidable by the- insane person himself, if he should thereafter recover his reason, .or by a committee duly appointed of. his estate, or, after his death, by his.' privies in blood or in estate. .These judgment creditors claim such an interest in his estate as to entitle them to bring suit* /

Without passing upon that question, about which there' may be some doubt, it is sufficient to say that the allegations of the complaint are not sufficient to establish the insanity of Belford. It is nowhere alleged that Belford was insane at the time of the transaction in question, or that he was of unsound mind, or that lie was wholly incompetent to comprehend the nature of the transaction. All that is alleged is that Belford was not in fit condition to transact any business, and was unable to understand his acts or the effect thereof.

In Aldrich v. Bailey (132 N. Y. 87) it was held that in an action to set aside a deed on the ground of the insanity of the grantor, the complaint should allege that the grantor was wholly and absolutely incompetent to comprehend and understand the nature of the transaction.”

It not being here alleged that he was insane, or of unsound mind, or “ wholly, absolutely and completely incompetent to understand and comprehend the nature of the transaction complained of,” the complaint is insufficient."

4. There remains to be considered whether the complaint states a cause of action upon the ground of -a fraud perpetrated upon Belford by procuring his intoxication and so.rendering him incompetent to 'Understand the effect of what he was doing. The equitable relief, if any, to which a party is entitled who lias been induced by fraud to make a conveyance is a rescission of the contract.

Upon this'branch of the case plaintiffs are to be considered as standing in the shoes of the defendant Belford, and the rule which would govern him, if he in his own. name was seeking a rescission, must govern them:

The facts alleged show that defendant Belford has a right of action in equity to set aside the transaction in question on the ground of fraud. This right is a property right. When the defendants Jones and Moran fraudulently obtained title to the saloon property they became constructive trustees of this property for defendant Belford, "and he has the same interest in this property as any other cestui que trust has in the property held by his trustee as such. This right is an equitable asset belonging to defendant upon which his judgment creditors have a right to realize by proceeding in equity. That the equitable assets of the judgment, debtor may be reached by the judgment creditor by an action in equity is settled law in this State. In First National Bank v. Shuler (153 N. Y. 171) the court said: “ The rule is well settled in this State that the plaintiff in a creditor’s action acquires by the commencement of the suit a lien upon the dioses in action and equitable assets of the debtor which entitles him, in the successful event of the action, to priority of payment thereout in preference to other creditors.”

In Edmeston v. Lyde (1 Paige, 637) the court said: “ The debts, dioses in action and other equitable rights of the defendants may he assigned or. sold under the decree of this court so as to vest an equb table interest in the purchaser which will be protected both here and at law. * * . * The principle being established that every species of property belonging to a debtor may be reached and applied to. the satisfaction of his debts, the powers of this court are perfectly adequate to carry that principle into full effect.”

The right in question is a chose in action- which may be reached by a judgment creditor. In Hudson v. Plets (11 Paige, 180) the court held that- a right of action for trespass' quare clausum fregit could be reached by a judgment creditor, and said : The right to an action for an injury to the property of the judgment debtor before the filing of the complainant’s bill whereby the property to which the creditor was entitled to resort for the payment of his debt is . destroyed or diminished in value, appears to be such a thing in action as may properly be reached, and applied to the payment of the complainant’s debt under a creditor’s bill.” That case was cited and approved in Reilly v. Sicilian Asphalt Paving Co. (170 N. Y. 44). It seems to me that that case is analogous to" the one at bar. I can see no difference in principle between a' legal and an .equitable right of action for an injury to property, and if one can be reached in equity by a judgment creditor it seems to me that the other should.

But the complaint does not. allege a precedent return of the consideration paid of an offer to return.

There is no doubt but that, plaintiff must submit to a deduction of the amount actually paid by defendants for the property in question from the proceeds of a sale thereof, or if there' be no. sale he must pay this amount to defendants before he can have the property; for he who. asks equity must do. equity, and it has always been the law that upon the rescission of a contract on account of fraud the vendor must return to the vendee the amount paid by the latter. (Allerton v. Allerton, 50 N. Y. 670.)

Certain cases decided by the Court of Appeals, in distinguishing between an action at law upon a rescission and one in equity for a rescission, have held that in the latter action “ it is sufficient ” -for the plaintiff to offer in his complaint to restore to the defendant' what he has received, and that atender of the same before suit brought is not necessary. (Gould v. Cayuga County Nat. Bank, 86 N. Y. 75 ; Berry v. A. C. Ins. Co., 132 id. 55 ; Vail v. Reynolds, 118 id. 302.)

An offer to return the consideration has been held unnecessary when the judgment prayed for allowed a deduction of the same from the amount of the.recovery. (Allerton v. Allerton, 50 N. Y. 670; Harris v. Equitable Life Assurance Society, 64 id. 196, 200.) These cases would seem to indicate that when the judgment prayed for does not allow a deduction of the consideration paid by the defendant there must be an offer in the complaint to return the consideration, and without such an offer the complaint is insufficient. In the complaint before us there is no such offer; indeed one of the prayers is that defendants pay to plaintiffs .what they have already paid under the contract. Is this omission fatal ?

Hay v. Hay (13 Hun, 315) is a case directly in point. It. was there held that in an action to set aside a contract on the ground of fraud it was not necessary to offer in the complaint to return the consideration received by plaintiff. The court said: “ A plaintiff who seeks equity must do equity. Therefore, if he asks the court to decree a rescission of his contract with a defendant for the fraud of the latter the court will not grant him the relief unless he restores whatever he has received from the latter, and which rightfully belongs to him. That condition will he imposed whether there be an offer to restore in the complaint or not. Ibis, however, a condition of granting relief, not of instibabing a suit.- . It is only when .relief against an illegal contract -is sought, and a statute requires that an offer to do equity must be made in the complaint, that such an offer is necessary.- We think, therefore, that an offer to restore is not a necessary ingredient of the causé' of action, and that a demurrer will not lie for the omission to insert such an offer in the complaint.” That case was followed in Winterson v. Hitchings (9 Misc. Rep. 322). Kley v. Healy (149 N. Y. 346) would seem to sustain the decision in Hay v. Hay (supra). It was there held that a judgment for plaintiff in an action to set aside a contract on the ground of fraud should be reversed for the reason that the plaintiff • had not offered to restore the defendant to the’ position which he occupied" at the time when the contract was made, “ and the, court in its decree has- not provided for such restoration as a Conditioii of awarding the relief demanded.”

In Halpin v. Mutual Brewing Co. (20 App. Div. 590) it was said: “ The proper course in' equity in cases where the plaintiff seeks the rescission of a contract under which he has received property is-to offer in the complaint to restore it to the defendant,-but such an offer is not indispensable. The court in its decree may provide for restitution ás a condition of granting the desired relief.” (Citing Kley v. Healy, supra.)

Even though it is the rule .that a complaint in an action of this kind should contain an offer -to return the consideration received by plaintiff, it seems to me that this case can be • brought'within the exception to that rule which makes such .an offer unnecessary where the relief prayed for allows defendant to retain the amount of his consideration. " .

This complaint contains a prayer for general relief, and it is a rule • of equity"" pleading that where plaintiff mistakes the relief to which he is entitled in liis special- prayer, “ the: court may yet afford him the relief to which he has a right, under the prayer of general relief, provided it is such relief as is agreeable to the case made by the bill.” (Story Eq. Pl. [10th ed.] § 40; Thompson v. Heywood, 124 Mass. 401.) This being the case, the prayer .for general relief may be considered as a prayer for the value of the property in question. minus what has already been paid. by defendants... With such a prayer it has been held that an" offer to return the consideration is unnecessary. Upon this view of the cause, of action, the complaint as against Jones and Moran is sufficient.

5. The complaint is also sought to be sustained as for a cause of action upon a sale in bulk of Belford’s stock of merchandise otherwise than in the ordinary course of trade in the regular and usual prosecution of his business without compliance with the provisions of the so-called sale in bulk statute, being chapter 569 of the Laws of 1904 (amdg. Laws of 1902, chap. 528).

We do not think-that the facts bring this transaction within the provisions of said statute.

6. There were two decisions filed upon the two demurrers interposed, and upon such decisions two separate 'judgments were entered. .

We find ño provisions of law authorizing such practice. There should have been but one decision and one judgment determining the questions raised by the several demurrers. Each demurrant could, thereafter, have appealed from so much of the judgment as affected him. The practice followed was anomalous and should not be encouraged.

The judgment overruling the demurrer Of Doelger should be reversed, with costs and disbursements to the appellant, with leave, however, to the respondents upon payment thereof within twenty-days to make and serve an amended . complaint. The judgment overruling the demurrer of Jones and Moran should be affirmed, with costs and disbursements to respondents.

Patterson, P. J., and Houghton, J., concurred; McLaughlin, J., concurred in result.

Ingraham, J. (concurring):

I concur with Mr. Justice Clarke that, for the reasons stated, no cause of action is alleged against the defendant Doelger, but I do hot concur in his conclusion that a causé of action is stated'as against the defendants Jones and Moran. I can find mo "allegation that the transfer of the business by Belford to Jones and Moran was made to hinder, delay or defraud creditors, or that Jones and Moran purchased the property with that intent. The substance of the allégation is that Jones and Moran purchased the property of Belford for $1,950, and that that property, including the good will of the business, was worth $3,000.

It appeared that Belford was indebted to the defendant Doelger for a, considerable amount, alleged in the complaint to be $1,191; that Doelger owned the building and fixtures, which he rented to Belford from May 1, 1905, to May 1, 1906, at an annual rental of $3,000, and Belford assumed a mortgage, of $10,000 held by Doelgev upon the premises; that on October U, 1905, Doelger notified the defendant Belford that he must sell out and vacate forthwith and refused to accept a purchaser of Belford’s business and good will who made an-offer of $3,500. Doelger was under no obligation to Belford’s creditors to allow him to continue in possession of property for which, as appears from the complaint, he had not paid the rent due therefor, and had not paid Doelger for the supplies furnished to enable him to continue his business. It is quite evident that the purchaser of- this. business, including the good will, could not successfully conduct the business' or continue in possession of the property without the consent of Doelger and he was not required to give such consent to any person or' persons suggested by the lessee. He accepted Jonós and Moran as purchasers. They were, therefore, entitled to purchase the property at what they considered a fair price, and that they made an advantageous purchase is no reason, in the absence of fraud, why they should-be deprived of it.

. This complaint, however, is sought to be sustained upon the allegation that after Doelger had notified Belford that he must sell out and vacate forthwith, and on October 18, 1905, a stranger called upon Belford and gave him several drinks of whisky; that thereafter Belford became totally unfit to discuss or. consider any business proposition and was unable to understand his acts or the' effect thereof; that thereupon the stranger offered him $50 cash if he would sell his place, equipment, business and good will for $lj950, and. obtained from Belford his signature to a contract embodying such terms, paying said Belford $50 ; that thereupon said stranger notified Belford that he was acting as agent in- the matter for Jones and' Moran. and that the transaction would be closed at the office of the defendant Doelger, where Belford-Would receive' $1,900 and sign a bill of sale. The complaint then'alleges that continuously after the signing of such contract Belford steadily .drank alcoholic beverages and at no' time between the signing of the contract and October twenty-first was lie able to comprehend the nature of his acts or the effect’ thereof, which fact is apparent and well known to every person with whom he came in contact; that on October 20, 1905, Belford called at the office of Doelger, - where - the bill of sale was signed. Doelger paid 'him the amount due him from Belford, and the balance of the money was paid to Belford, who disposed of it by spending part- of it and applying the balance to the payment of debts; that on October twentieth the representative of Jones and Moran took possession of the premises and Belford vacated the same.

Belford, so far as appears, never sought to disaffirm this transaction, but the plaintiffs, as his creditors, commenced this action in February, 1906, claiming to disaffirm this transfer upon the ground that the same was fraudulent and void as against the plaintiffs as creditors of Belford, or in the alternative to recover judgment against the defendants for the amount of Belford’s indebtedness to plaintiffs.

It seems to be conceded that the plaintiff would be required, to repay to Jones and Moran the amount that they paid to Belford before the transfer could be set aside. There is no allegation that Jones and Moran received any money of property out of the transaction, but simply that they obtained an assignment' of this business, which included the good will, lease and fixtures, for a sum of money which was less than its real value. There is nothing to justify a personal judgment against any of the defendants for any surp of money, but it is claimed that the plaintiffs were entitled to have the sale set aside and a receiver appointed to take possession of the assigned property for the benefit of- Belford’s creditors. Belford makes no complaint, but his creditors seek to enforce a right that he had to set-aside the transfer upon the ground that he was intoxicated and did not know what he was about. I do not see how it can be said that Jones and Moran were responsible for his intoxication, and the case must stand or fall upon whether these allegations are sufficient to show that Belford was incompetent by reason of temporary insanity caused by the excessive use of alcohol to make a valid transfer of his business-

Clearly, before such a transfer could be set aside, the plaintiffs would be compelled to repay the amount that Jones and Moran actually paid, and to sustain such an action, as I understand the rule, it is necessary to allege either a tender of the amount or a willingness to repay as, a condition of the equitable relief asked for. It is held in the prevailing opinion,, however, that a complaint is not demurrable because it fails to make an offer to return the consideration received by the assignee. The case of Hay v. Hay (13 Hun, 315) is cited as an authority for that proposition. The complaint in that case alleged' that while one James Hay, for whom the plaintiff was the committee, was insane and under the"duress and restraint of the defendant, the latter extorted from him an agreement in writing, and on the same day, with fraudulent intent and unlawful coercion, induced him to execute a will, wherein defendant was named sole legatee and executor. Subsequently Hay was found a lunatic and defendant was appointed his" committee ; that the defendant, subsequently, by false representations induced the plaintiff to enter into an agreement with him, by which plaintiff waived all objections to the probate of the will, which was admitted to probate, and ■ defendant qualified as executor and continued to act as such. Subsequently the defendant obtained by fraud a general release from the plaintiff, and the complaint demanded that these four instruments be adjudged to be void. There was here no allegation, so far as appears, that the plaintiff had ever received anything from the defendant or that there was anything that the plaintiff should be compelled to restore in order to entitle him to maintain the action. Ho authorities are cited in the opinion upon the necessity of an offer to restore money that has been actually received by a lunatic or incompetent person for the transfer of property, and from the "report the question does not seem to have been presented.

The case of Kley v. Healy (149 N. Y. 346) is also cited as sustaining this contention, but I think it is an authority for the defendants. That was an action to set aside certain instruments executed by the defendant on the ground that they had been obtained by fraud. Judgment was entered at Special Term in favor of the plaintiff, which judgment was reversed by the General Term of the Court of Common Pleas (9 Misc. Rep. 93), and from the order of reversal the plaintiff appealed to the Court of Appeals. The reversal of that judgment was there sustained upon the ground that" “ the plaintiff has not offered to restore the defendant to the position which he occupied at the time when the agreement for settlement was made between them, and the court in its decree has not provided for ,such restoration as a condition of awarding the relief demanded.” The reason given is in the conjunctive and not in the disjunctive, and it would appear to follow from what was said that an allegation in the complaint of an offer to restore was necessary to sustain any cause of action. There was a dissent in that case, but the rule stated in the prevailing opinion seems to have been conceded, the only dissent being upon the principle that the point should have been made upon the trial and not left to be first considered on appeal. That case was before the Court of Appeals upon a former appeal (Kley v. Healy, 127 N. Y. 555), where the complaint was dismissed upon the opening. That judgment was reversed upon the principle that oné who attempts to rescind a transaction on the ground, of fraud is not required to restore that which in any event he would be entitled to retain, either by virtue of the contract sought to be- set aside or of the original liability. * * * While the sum retained should be taken into account in the award of relief, an offer to restore it is not a condition precedent to the bringing of an action to set aside the fraudulent release. * * * If her action failed, she was entitled to the sum received by virtue of the transaction itself. If she succeeded, the sum was less than she was concededly entitled to by the original judgment. In any event, therefore, she had only that which, without dispute, belonged to her, and a restoration, or the offer thereof, was unnecessary prior to the commencement of the action, for such conditions as might be essential to the protection of the defendant could be inserted in the judgment ultimately rendered.”

In Gould v. Cayuga County Nat. Bank (86 N. Y. 75) the condi tions under which a party may sue in case of transfer.or agreement obtained by fraud is stated as follows : “ One situated like the plaintiff can rescind by tendering or restoring what he has received, and then commence his action. He may keep what he has received and sue to recover damages for the fraud ; or he may commence an action in equity to rescind and for equitablé relief, offering in his complaint to restore in case he is not entitled to retain what he has received.”

From these cases the rule in relation to these actions is settled. When a plaintiff sues at law he is bound to tender the amount that he has received before maintaining the action based upon a rescission of the conveyance thus obtainéd; or he may, sue generally to recover damages for the fraud. He may also apply to a court of equity to rescind. In eqniiy where it appears that if he obtained-the relief for which he asked'he would not be entitled- to retain what he received, he must, in his complaint, offer to restore the amount received as a condition of equitable relief.

In this case I think it clear that if Belford had commenced this action, to rescind and repossess himself of the property assigned to Jones and Moran, he would have been compelled to repay to Jones and Moran the money that had been paid to him and which had been applied by him to the payment of his debts, or applied by him for his own purposes. It certainly would be inequitable for Belford or his creditors to obtain possession of the property for which Jones and Moran had paid $1,950 and not repay to them the amount that they had paid and which had been applied by. Belford to his own use. - Plaintiffs, as his creditors, can certainly stand in no better position than he stood, and' can obtain a rescission only upon the terms upon which he could insist upon such rescission. An allegation that plaintiff offered to restore is material, for' although the plaintiffs claim that this property, including the good will of the business, was worth $3,000, it is ' alleged that Jones and Moran actually paid $1,950 for it. It does not appear that Doelger was bound to recognize any assigned of Jones and Moran as a tenant or allow them to continue in possession of the leased property. However much .the plaintiffs might desire to recover the amount of Belford’s indebtedness to them, there is nothing to show that they would be willing under these conditions to repay to Jones and Moran the amount' that they had actually paid for the business. At any rate, Jones and Moran were entitled to receive that amount before tl^e. sale could be rescinded, and these plaintiffs could not maintain an .action for the rescission of the sale without tendering either the amount that Jones and Moran had paid for -the business, or offering in the complaint to make restitution.

For these reasons I think the demurrer should have been sustained. ' '

As -to defendant Doelger, judgment' reversed, with costs, and demurrer sustained, with costs,- with leave to respondents to amend on payment of such costs. As to defendants. Jones and Moran, judgment affirmed, with costs. Settle order on notice. '  