General Lumber Corp. v. Landa

13 A.D.2d 804, 216 N.Y.S.2d 33, 1961 N.Y. App. Div. LEXIS 10894

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1961
• Status: Published

Opinion

In an action upon a promissory note in the face amount of $1,967.54, plaintiff corporation appeals from a judgment of the Supreme Court, Kings County, entered January 11, 1961, after a nonjury trial, directing defendant to pay to it the amount of the note, plus interest thereon and costs, totaling $2,281.79. Plaintiff appeals solely on the ground of the inadequacy of the judgment, contending that it should have included an attorney’s fee equal to 20% of the amount of the note. The note provides specifically for the payment of such fee by the maker in the event that it be unpaid at maturity and placed with an attorney for collection. The trial court found that such a fee is unreasonable in amount and constitutes a penalty, and held that to enforce its collection would in any event be against public policy. Judgment modified on the law and the facts by increasing it by the sum of $393.50, being an amount equal to 20% of the face amount of the note. As so modified, the judgment is affirmed, without costs. Informal findings of fact contained in the record which may be inconsistent herewith are reversed, and new findings are made as indicated herein. A provision for a reasonable attorney’s fee, contained in a promissory note, is enforcible (Negotiable Instruments Law, § 21, subd. 5; Penal Law, § 275-a; Commercial Inv. Trust v. Eskew, 126 Misc. 114.) It is our opinion, and we find, that a sum equal to 20% of the face amount of this note, is a reasonable attorney’s fee for its collection by suit. Nolan, P. J., Beldoek, Ughetta, Kleinfeld and Christ, JJ., concur.