Mandelino v. Fribourg

Appellate Division of the Supreme Court of New York

Mandelino v. Fribourg

29 A.D.2d 677, 287 N.Y.S.2d 611, 1968 N.Y. App. Div. LEXIS 4804

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

DecidedJanuary 22, 1968

StatusPublished

This text of 29 A.D.2d 677 (Mandelino v. Fribourg) 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

Mandelino v. Fribourg, 29 A.D.2d 677, 287 N.Y.S.2d 611, 1968 N.Y. App. Div. LEXIS 4804 (N.Y. Ct. App. 1968).

Pincite

Opinion

In an action for judgment declaring a purchase money note and mortgage void for usury, plaintiff appeals from an order of the Supreme Court, Kings County, dated June 20, 1967, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action or, in the alternative, for summary judgment. Order reversed, with $10 costs and disbursements, and defendants’ motion denied, without costs and with leave to [678]*678defendants to answer the complaint within 10 days after service of a copy of the order hereon with notice of entry. In our opinion the complaint states a valid cause of action, in that it sets forth that the note and the mortgage covering real property provide for interest at the rate of 7% per annum. While defendants, as sellers on credit to plaintiff, were free to enlarge the purchase money mortgage obligation by reason of the extension of credit thereon, they were not free to exact interest in excess of the lawful rate prescribed in the statute (King v. American Home Sales Corp., 15 A D 2d 932; Baben v. Overseas Barters, 55 Mise 2d 613; General Obligations Law, § 5-501). Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.

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In an action for judgment declaring a purchase money note and mortgage void for usury, plaintiff appeals from an order of the Supreme Court, Kings County, dated June 20, 1967, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action or, in the alternative, for summary judgment. Order reversed, with $10 costs and disbursements, and defendants’ motion denied, without costs and with leave to [678]*678defendants to answer the complaint within 10 days after service of a copy of the order hereon with notice of entry. In our opinion the complaint states a valid cause of action, in that it sets forth that the note and the mortgage covering real property provide for interest at the rate of 7% per annum. While defendants, as sellers on credit to plaintiff, were free to enlarge the purchase money mortgage obligation by reason of the extension of credit thereon, they were not free to exact interest in excess of the lawful rate prescribed in the statute (King v. American Home Sales Corp., 15 A D 2d 932; Baben v. Overseas Barters, 55 Mise 2d 613; General Obligations Law, § 5-501). Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.

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Bluebook (online)

29 A.D.2d 677, 287 N.Y.S.2d 611, 1968 N.Y. App. Div. LEXIS 4804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mandelino-v-fribourg-nyappdiv-1968.