Oberndorff v. Wolfson

Appellate Division of the Supreme Court of New York

Oberndorff v. Wolfson

16 A.D.2d 774, 228 N.Y.S.2d 240, 1962 N.Y. App. Div. LEXIS 9490

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

DecidedMay 24, 1962

StatusPublished

This text of 16 A.D.2d 774 (Oberndorff v. Wolfson) 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

Oberndorff v. Wolfson, 16 A.D.2d 774, 228 N.Y.S.2d 240, 1962 N.Y. App. Div. LEXIS 9490 (N.Y. Ct. App. 1962).

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Opinion

Order, entered January 11, 1962, denying defendant’s motion denominated as for reargument unanimously reversed on the law and in the exercise of discretion; order and judgment granting plaintiffs’ motion for summary judgment unanimously reversed on the law; the motion for reargument granted; and the motion for summary judgment denied; with costs to defendant-appellant. In this action upon written agreements for the sale of stock, requiring the seller, at the purchaser’s option, to repurchase the stock at an advanced price, there are issues of fact concerning the usury defense which cannot be resolved by summary judgment. The writings submitted in support of the motion, however convincing in establishing that a true sale occurred, are not conclusive (Von Haus v. Soule, 146 App. Div. 731, 734; Restatement, Contracts, § 238, subd. [b]; § 529, Illus. 1; 22 N. Y. Jur., Evidence, § 634 and cases cited; Anno.— Parol Evidence Rule — Evidence as to Usury, 82 A. L. R. 1199, Supp. 104 A. L. R. 1261). Defendant denies the sale and asserts, with at least minimal evidentiary support, that a loan was made with the stock as security. Settle order on notice. Concur — Botein, P. J., Breitel, Rabin, Eager and Steuer, JJ.

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Order, entered January 11, 1962, denying defendant’s motion denominated as for reargument unanimously reversed on the law and in the exercise of discretion; order and judgment granting plaintiffs’ motion for summary judgment unanimously reversed on the law; the motion for reargument granted; and the motion for summary judgment denied; with costs to defendant-appellant. In this action upon written agreements for the sale of stock, requiring the seller, at the purchaser’s option, to repurchase the stock at an advanced price, there are issues of fact concerning the usury defense which cannot be resolved by summary judgment. The writings submitted in support of the motion, however convincing in establishing that a true sale occurred, are not conclusive (Von Haus v. Soule, 146 App. Div. 731, 734; Restatement, Contracts, § 238, subd. [b]; § 529, Illus. 1; 22 N. Y. Jur., Evidence, § 634 and cases cited; Anno.— Parol Evidence Rule — Evidence as to Usury, 82 A. L. R. 1199, Supp. 104 A. L. R. 1261). Defendant denies the sale and asserts, with at least minimal evidentiary support, that a loan was made with the stock as security. Settle order on notice. Concur — Botein, P. J., Breitel, Rabin, Eager and Steuer, JJ.

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Bluebook (online)

16 A.D.2d 774, 228 N.Y.S.2d 240, 1962 N.Y. App. Div. LEXIS 9490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oberndorff-v-wolfson-nyappdiv-1962.

Opinion

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