Proudman v. Shaw Service Stations, Inc.

255 A.D. 857, 7 N.Y.S.2d 526, 1938 N.Y. App. Div. LEXIS 5666

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 1938
• Status: Published

Opinion

In an action to foreclose a mortgage, setting up two causes of action on two separate mortgages, the defendant-respondent corporation, purchaser of the premises subject to the first mortgage and maker of the second purchase-money mortgage, set up a defense of usury. The plaintiff moved for [summary] judgment on the pleadings pursuant to rule 113 of the Rules of Civil Practice. The motion was denied and the plaintiff appeals. Order of the County Court of Suffolk county, denying motion for [summary] judgment on the pleadings, reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. No triable issue was raised by said defendant’s affidavits as to either mortgage. As to both mortgages, the evidence clearly establishes that there was a default in the payment of interest. The defense of usury, urged as to the second mortgage, is not available to this corporate defendant. (Jenkins v. Moyse, 254 N. Y. 319.) Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.