Royal Diamond Co. v. Ostrin

133 Misc. 555

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1928
• Status: Published

Opinion

Per Curiam.

Judgment and order unanimously reversed upon

the law, with thirty dollars costs to appellants, and motion denied, with ten dollars costs.

The affidavits in opposition to the motion state matters which, if established, will show that the note had been discounted by the plaintiff and a usurious rate of interest exacted, that other notes previously thereto had likewise been discounted by the plaintiff, and that the malting of the note by the one defendant, to the order of the other defendant, and then procuring it to be discounted by the plaintiff, was pursuant to an arrangement entered into between the plaintiff and the defendant Kupchick. A non-banking corporation may not discount commercial paper, and notes or securities given to secure such loans or discount are void. (Banking Law, § 140; New York State Loan & Trust Co. v. Helmer, 77 N. Y. 64; Meserole Securities Co. v. Cosman, 131 Misc. 361.)

The answering affidavit, therefore, raised questions which made it improper to grant the motion for summary judgment. It is immaterial on such a motion that the matters stated in the answering affidavits do not appear in the answer.