Franklin National Bank v. Bush Homes, Inc.

30 Misc. 2d 473, 219 N.Y.S.2d 280, 1961 N.Y. Misc. LEXIS 2431

• Court: New York Supreme Court
• Decided: August 31, 1961
• Status: Published

Opinion

Mario Pittoni, J.

Motion for summary judgment in an action (1) on notes for $455,000, and (2) on the guarantee of said-notes.

Thirteen notes executed between November 25, 1960 and March 1,1961 by defendant Bush Homes, Inc. (with guarantees of payment by the remaining defendants) have not been paid. Payment of all was accelerated when payment of three notes was not made on their due dates. Bach note contains a provision for a 20% attorney’s fee.

As in the companion action, decided herewith, the defendants plead usury in the provision for a 20% fee. That defense has not been sustained (General Lbr. Corp. v. Landa, 13 A D 2d 804 [2d Dept.]). Gair v. Peck (6 N Y 2d 97), cited by defendants, is not in point. That case involved contingent fees between attorneys and clients in negligence actions, not added percentages to the amounts of notes payable, according to contract between the parties, by the losing party for legal services required by the winner to prevail. Nor may the defendants plead or rely on any oral agreement to extend the time of payment of the notes. (Manufacturers Trust Co. v. Palmer, 13 A D 2d 772 [2d Dept.].) Motion is granted.