Fort v. 415 Central Park West Corp.

Frankenthaler, J. The first cause of action contains no allegations that the mortgage company did anything which it had no legal right to do. The agreement between it and the 415 Central Park West Corporation is not made part of the pleading, although it is referred to therein. In the absence of any allegation to that effect it cannot be assumed that any of its acts, now complained of, violated or were unauthorized by the agreement. Paragraph 19th alleges that the mortgage company required Roe to transfer his stock in the 415 Central Park West Corporation to it “ as a condition of excusing such defaults,” referring to Roe’s failure to fulfill the agreement between the parties. There is no averment that Roe was not actually in default at the time, and under the circumstances there is nothing to show that the mortgage company was not lawfully entitled to require additional security as a condition of continuing the loan and refraining from foreclosing the mortgage. Similar observations may be made with reference to other allegations of the first cause of action. Assuming that the claim that moneys in excess of the fee agreed upon were paid to persons engaged in building the structure may be valid and meritorious as to some of the defendants, it certainly cannot justify the reconveyance of the property as prayed for in paragraph 29th. The first cause of action, therefore, fails to affect the moving defendants. They are in no way linked up with the excessive payments by any of the allegations of the first cause of action and no case for a reconveyance of the realty is made out against them or any of the defendants. Allegations of conspiracy, etc., on the part of the mortgage company are meaningless in the absence of any showing that the purpose of the conspiracy was wrongful. The allegations of paragraph 22d, to the effect that the stock pledged by Roe was sold at public auction, do not avail plaintiff since there is no averment that this was done in violation of the rights of Roe or any one else. Moreover, the moving defendants are in nowise concerned with the reconveyance of the stock which plaintiff now seeks. As to them, the first cause of action is clearly insufficient. [777] In the second cause of action plaintiff charges that the transaction was usurious, although the loan was nominally made to the 415 Central Park West Corporation. The moving defendants argue that there can be no usury where a corporation is the borrower and that the veil of the corporate entity cannot be pierced. In this they appear to be in error. (See Editorial, N. Y. L. J Dec. 19, 1927, entitled “ Usury — Use of Corporation as a Cloak for Law Evasion,” and Wormser on “ The Disregard of the Corporate Fiction and Allied Corporate Problems,” 84.) However, the second cause of action is insufficient for other reasons. A trustee in bankruptcy cannot rescind a usurious transaction and recover the securities pledged thereunder without paying or offering to pay the lender the amount borrowed. (Rice v. Schneck, 189 App. Div. 877; affd., without opinion, 228 N. Y. 561.) The offer to pay contained in paragraph 42d of the complaint is conditional and not absolute. Such a tender is invalid and of no effect. (Noyes v. Wyckoff, 114 N. Y. 204, 207; Gould v. Cayuga County National Bank, 86 id. 75, 84.) Moreover, the condition of the offer, viz., that the title to the realty be transferred to plaintiff, is unwarranted under the allegations of the complaint. For aught that appears, Roe’s stock was properly sold at public sale, in which event he and his trustee in bankruptcy would be divested of any rights in the corporation which owned the equity in the property. The second cause of action is, therefore, insufficient in law. The third cause of action, dealing with the improper construction of the building, seeks no relief other than money damages. It contains no allegation affecting the moving defendants, and as to them is obviously insufficient. The fourth cause of action seeks an accounting from the moving defendants as well as from the mortgage company. There is no allegation, however, that any moneys of which an accounting is desired were ever received or disbursed by the moving defendants, and, indeed, they are not even mentioned in the fourth cause of action. It manifestly fails to make out any case against them. The motion to dismiss is accordingly granted.