
    Smith Ryder, App’lt, v. The Bushwick R. R. Co., Resp’t.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    1. Corporations — Action to compel issue of stock — Limitations.
    An action to compel a corporation to receive certificates for its stock and to issue stock therefor is maintainable without a demand, and such action is barred by the statute of limitations in ten years from the delivery of the certificates.
    2. Same — Specific performance.
    When the origin of the certificates and their consideration is obscure a court of equity will not enforce specific performance of the agreement' to exchange stock therefor, but will leave the plaintiff to his action for damages.
    Appeal from judgment dismissing complaint.
    Action to compel defendant to accept from plaintiff certain certificates for its stock and to issue stock therefor and place plaintiff’s name on its transfer books as owner of said stock, and also for an accounting of the dividends on the stock from the dates of the certificates. Plaintiff claimed that he was induced to purchase in 1874 said certificates by the promise of defendant to receive them and issue stock in lieu thereof. The answer set up the statute of limitations as a defense. The books of the company contained no mention of these certificates and it was not clearly shown that they were issued under any authority from the company nor what consideration was received for them.
    
      Chas. S. Simpkins, for app’lt; Edwin W. Ivins (Thomas S. Moore, of counsel), for resp’t
   Pratt, J.

The action is equitable. No demand was necessary-before bringing suit. The present action could have been brought at once on the delivery of the certificates.

This action was barred by the statute in ten years from the delivery of the certificates. The statute of limitations is, therefore, a good defense.

Irrespective of that statute we are of opinion that the origin of the certificates and the consideration paid therefor are not shown with sufficient clearness to justify the court in adjudging a specific performance.

That relief is, tó a certain extent, in the discretion of the court. And where serious doubt surrounds a transaction courts of equity often decline to aid a plaintiff, leaving him to his remedy at law. A remedy at law existed in the present case; as an action for damages might have been sustained for a refusal to issue stock.

We think the meagreness of the proof of the origin and consideration of the certificates would justify the refusal to decree specific performance.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  