Opinion
November 29, 1937.
Order denying motion of defendant Lichtman to dismiss the complaint reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Since the plaintiff is not the borrower, she may not maintain an action in equity for the cancellation or recovery of the usurious instruments without alleging payment, or a tender of payment, of the amount actually received by the deceased. ( Buckingham v. Corning, 91 N.Y. 525; Lubetkin v. Stern Co., Inc., 223 App. Div. 770.) In the absence of such allegations the complaint fails to state facts sufficient to constitute a cause of action. This determination is without prejudice to the commencement by the plaintiff of an action at law to recover the proceeds of the insurance policies, if such a cause of action exists. Hagarty, Carswell, Johnston, Taylor and Close, JJ., concur.