Broad & Wall Corp. v. O'Connor

Appellate Division of the Supreme Court of New York

Broad & Wall Corp. v. O'Connor

13 A.D.2d 462, 211 N.Y.S.2d 891, 1961 N.Y. App. Div. LEXIS 12082

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 14, 1961

StatusPublished

Cited by4 cases

This text of 13 A.D.2d 462 (Broad & Wall Corp. v. O'Connor) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Broad & Wall Corp. v. O'Connor, 13 A.D.2d 462, 211 N.Y.S.2d 891, 1961 N.Y. App. Div. LEXIS 12082 (N.Y. Ct. App. 1961).

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Opinion

Judgment entered on the order granting plaintiff’s motion for summary judgment, unanimously reversed, on the law, on the facts and in the exercise of discretion, and the motion is denied with leave to renew upon completion of all pretrial proceedings, without costs. On this rather incomplete and unsatisfactory record, a question of fact is presented with respect to the defense of usury alleged in the first complete defense. The defense and the affidavit of Fassoulis allege he, and not Sales Consultants, Inc., is the borrower. Further, an issue of fact is presented with respect to privity. The defense of usury is personal to the borrower and is not available to these defendants if they were strangers to the allegedly usurious loan transaction. (Williams V. Tilt, 36 N. Y. 319, 325 ; Thorer & Hollander v. Fuchs, 241 App. Div. 359; Crittenden v. Barkin, 212 App. Div. 232, affd. 242 N. Y. 508.) We do not at this time decide whether plaintiff is entitled to recover the principal of the promissory note or whether recovery is limited to the amount of the loan thereby secured. Concur— Botein, P. J., Breitel, Raibin, McNally and Eager, JJ.

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Judgment entered on the order granting plaintiff’s motion for summary judgment, unanimously reversed, on the law, on the facts and in the exercise of discretion, and the motion is denied with leave to renew upon completion of all pretrial proceedings, without costs. On this rather incomplete and unsatisfactory record, a question of fact is presented with respect to the defense of usury alleged in the first complete defense. The defense and the affidavit of Fassoulis allege he, and not Sales Consultants, Inc., is the borrower. Further, an issue of fact is presented with respect to privity. The defense of usury is personal to the borrower and is not available to these defendants if they were strangers to the allegedly usurious loan transaction. (Williams V. Tilt, 36 N. Y. 319, 325 ; Thorer & Hollander v. Fuchs, 241 App. Div. 359; Crittenden v. Barkin, 212 App. Div. 232, affd. 242 N. Y. 508.) We do not at this time decide whether plaintiff is entitled to recover the principal of the promissory note or whether recovery is limited to the amount of the loan thereby secured. Concur— Botein, P. J., Breitel, Raibin, McNally and Eager, JJ.

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Bluebook (online)

13 A.D.2d 462, 211 N.Y.S.2d 891, 1961 N.Y. App. Div. LEXIS 12082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broad-wall-corp-v-oconnor-nyappdiv-1961.

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