Investors Collateral Corp. v. Joyce

14 A.D.2d 542, 218 N.Y.S.2d 74, 1961 N.Y. App. Div. LEXIS 9641

Opinion

The counterclaim and defense alleged that the loan by plaintiff’s assignor to defendants, Joyce, secured by the mortgage under foreclosure, was made pursuant to a usurious agreement. The findings of the learned trial court that usury was not proved, is supported by the record (cf. Rosenstein v. Fox, 150 N. Y. 354, 364; Grannis v. Stevens, 216 N. Y. 583, 591; Carrington Bros. v. Gadsby, 237 App. Div. 195). In an action to foreclose a mortgage the allowance of costs is discretionary (cf. Empire Trust Co. v. Newport Eng. Co., 249 App. Div. 820; Civ. Prac. Act, § 1477). In the absence of an award in the decision, costs were improperly incorporated in the judgment (Sagona v. Montalbano, 228 App. Div. 857). A plaintiff in an action to foreclose a mortgage is entitled to an additional allowance only if he recovers costs on a final judgment rendered in his favor (Civ. Prac. Act, §§ 1512, 1512-a, 1513; see Van Bel Co. v. Board of Educ., 241 App. Div. 609; Baranowsky Co. v. Guaranty Trust Co. of N. Y., 247 App. Div. 169, 172). Nolan, P. J., Beldoek, Ughetta, Kleinfeld and Christ, JJ., concur.