
    Henry N. Crusins, Plaintiff, v. Arthur Siegman et al., Defendants.
    (Supreme Court,
    New York Special Term, June, 1913.)
    Negotiable instruments — void in inception for any reason — banks under section 74 of. the Banking Law may enforce usurious instrument— injunction pendente lite.
    A negotiable instrument void in its inception for any reason is void in, the hands of any subsequent holder except that in certain eases a bank under section 74 of the Banking Law may enforce a usurious instrument, although an individual holder may not.
    Where certain promissory notes usurious in their inception were made by plaintiff to the order of one of defendants who for value and before maturity and without notice to the transferee of any infirmity in the instruments transferred them with certain jewelry pledged as security for their payment to the other defendant who threatened to sell the jewelry, plaintiff is entitled to maintain an action under section 373 of the General Business Law to have the notes adjudged void and to have them surrendered to the plaintiff together with said jewelry.
    An injunction will be granted pendente lite against the defendant who threatened to sell the jewelry and to restrain him from prosecuting an action commenced on one of the notes in the City Court of the city of New York upon plaintiff giving an undertaking in such form and amount as the order shall provide.
    Motion for an injunction pendente lite.
    
    Herman J. Rubenstein, for motion.
    Herman B. G-oodstein, opposed.
   Giegerich, J.

The action is to have certain promissory notes adjudged void and to have them surrendered to the plaintiff, together with certain jewelry pledged as security for their payment, and also to restrain one of the defendants from prosecuting an action commenced upon one of the notes in the City Court of the city of New York. The present application is for an injunction restraining the defendants pendente lite from selling or otherwise disposing of the jewelry, and also restraining the prosecution of the action in the City Court. The ground of the action is that the notes were given iipon a usurious consideration, and the relief' demanded is that prescribed by section 373 of the General Business Law, and which, so far as applicable, reads as follows: “ Whenever it shall satisfactorily appear by the admissions of the defendant, or by proof, that any bond, bill, note, assurance, pledge, conveyance, contract, security or any evidence of debt has been taken or received in violation of the foregoing provisions, the court shall declare the same to be void and enjoin any prosecution thereon and order the same to be surrendered and canceled. ’ ’ The notes were originally made by the plaintiff to the order of the defendant Libbie Fleig. She has transferred them, together with the jewelry, to the defendant Siegman, and upon the papers before me it must be held, for the purposes of this motion, that such transfer was made for value before maturity of the notes and without notice to the transferee of any infirmity in the instruments. The papers sufficiently establish the fact that the notes were usurious in their inception, but the defendant Siegman urges that, even, though that be the fact, it is immaterial as to him since he is a bona fide holder for value without notice, and he cites section 96 of the Negotiable Instruments Law and various, cases in which that section has been discussed as authority for his contention. The section in question is. as follows: “ Sec. 96. A holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.” I am very clearly of the opinion that, notwithstanding the provisions of the statute just quoted, a negotiable instrument which is void in its inception, whether it be for usury or for forgery or for any other reason sufficient to make it void, is also void in the hands of any subsequent holder, except only that, owing to the provisions of the Banking Laws (§ 74), a bank may in certain cases enforce a usurious instrument, although an individual holder could not do so. See Schlesinger v. Gilhooly, 189 N. Y. 1; Schlesinger v. Lehmaier, 191 id. 69. This was very evidently the opinion of all the judges of the Court of Appeals in Schlesinger v. Gilhooly, supra, except Judge Willard Bartlett (see pp. 7-8 and 21-22), and as I have no doubt that such is the correct view I do not feel bound to defer either to the dicta or decisions of this court upon the question. It has been held that section 373 of the General Business Law does not authorize the maintenance of an action merely to have a past due note adjudged void on the ground of usury. Reiner v. Galinger, 151 App. Div. 711. This is because in such a case the maker of -the note has a perfect defense at law and. has therefore no occasion to resort to equity for relief, and the statute was not considered to have changed the law in that respect. In the present case, however, the plaintiff seeks other relief, and I think he is entitled' to maintain this action, for he seeks the relief expressly provided by the statute and to which he would probably be entitled without the aid of the statute. Since the plaintiff requires equitable relief, arid all the matters in controversy between all the parties can be fully disposed of in this action in equity, it seems proper to enjoin the further prosecution of the action at law pending in a court which is without equity jurisdiction. As the defendant Siegman holds both the notes and the jewelry and is the only person who is threatening to sell the jewelry the injunction should issue against him alone. The motion for an injunction pendente lite against the defendant Siegman is granted, with ten dollars costs to the plaintiff to abide the event, upon giving an undertaking in such form and in such sum as shall be provided by the order to be entered hereon.

Ordered accordingly.  