Doyle v. Sommer

264 A.D. 860, 35 N.Y.S.2d 367, 1942 N.Y. App. Div. LEXIS 5144

Opinion

In an action to foreclose a mortgage, judgment of foreclosure and sale reversed on the law and the facts and a new.trial granted, with costs to appellants to abide the event. The appellants set up a defense of usury, both as to the original loan and as to two subsequent extensions thereof. The proof establishes that a son of the mortgagee acted as her agent and attorney in the transaction and that he received a fee or bonus of $1,208.50 upon closing the loan. The appellant Louise Sommer offered testimony to the effect that prior to the making of the loan she told the plaintiff that she (the plaintiff) was receiving a large bonus for the loan, and that the plaintiff replied to the effect that any arrangements made by her son Charles were satisfactory to her. This testimony was undisputed. This, together with the fact that the cheek given in payment of the fee or bonus was cashed without going through the agent’s bank account, created an inference that called upon the plaintiff to refute the testimony. (New York Mortgage Co. v. Garfinkle, 231 App. Div. 327; St. John v. Fowler, 229 N. Y. 270, 272; Wylde v. Northern R. R. Co. of N. J., 53 id. 156; Mullen v. Quinlan & Co., 195 id. 109; Dowling v. Hastings, 211 id. 199.) For the purposes of a new trial all findings of fact and conclusions of law are reversed. Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.