Lubetkin v. D. S. Stern & Co.

Order reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Plaintiffs, not being the actual borrowers, may not maintain this action to cancel the alleged usurious notes, and for the return of collateral given thereunder, without restoring, or offering to restore, to defendant the sum or sums actually received by their testator. (Buckingham v. Corning, 91 N. Y. 525.) The complaint failing, for this reason, to state facts sufficient to constitute a cause of action, the injunction pendente lite was improperly granted. Lazansky, P. J., Rich, Young, Seeger and Carswell, JJ., concur.