Amalgamated Bank v. Lancto

176 Misc. 754, 28 N.Y.S.2d 944

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 6, 1941
• Status: Published

Opinion

Per Curiam.

The provision of subdivision 1 of section 108 of the Banking Law, which permits a bank charging more than six per cent interest to recover the principal of the loan, is applicable to banks which charge interest in excess of the sums permitted by subdivisions 2 and 3 of the same section. However, the judgment below granted the plaintiff a recovery of the interest charged, as well as of the principal, notwithstanding the express provision that “ the entire interest ” shall be forfeited in the event of an excessive charge of interest. Since a triable issue was presented as to whether the interest deducted in advance by the plaintiff exceeded the charge authorized by subdivision 2 of section 108 of the Banking Law, the motion for summary judgment should have been granted only to the extent of awarding partial judgment for the principal sum loaned. As the answering affidavit claims that the amount of interest deducted by the plaintiff was $207.90, the recovery on the first two causes of action should be reduced by that amount.

Judgment modified by reducing plaintiff’s recovery by the sum of $207.90; order modified accordingly; action severed as to balance of plaintiff’s claim; and judgment and order as modified, affirmed.

All concur. Present — McCook, Miller and McLaughlin, JJ.