Schaich v. Avitabile

New York Supreme Court

Schaich v. Avitabile

140 Misc. 868, 252 N.Y.S. 413, 1931 N.Y. Misc. LEXIS 1655

DecidedApril 29, 1931

StatusPublished

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Bluebook

Schaich v. Avitabile, 140 Misc. 868, 252 N.Y.S. 413, 1931 N.Y. Misc. LEXIS 1655 (N.Y. Super. Ct. 1931).

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Opinion

Rodenbeck, J.

There is no evidence of usury in this case. The plaintiff sold his credit, which he had a right to do. (Kitchel v. Schenck, 29 N. Y. 515; Forgotston v. McKeon, 14 App. Div. 342.) There appears to be no collusion between him and the bank or broker involved. There was no loan made by the plaintiff. The transaction is not a cover for a usurious loan.

The transaction was not a building loan contract. The plaintiff made no loan and he had no building contract with defendants Avitabile. The reference in the mortgages to the use of the funds was unnecessary so far as the statutes are concerned, and was inserted for the protection of plaintiff’s indorsement. The language of the mortgages shows that the mortgages were designed as indemnity for the plaintiff, in case he was obliged to take up the notes which he had indorsed. (Gen. Bus. Law, § 371; Lien Law, [869]*869§§ 13, 22, as amd. by Laws of 1930, chap. 859; Weaver Hardware Co. v. Solomovitz, 235 N. Y. 321, 335.)

The hen of the mortgages is superior to the mechanics’ hens, and the plaintiff is entitled to a judgment of foreclosure, with costs.

So ordered.

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Rodenbeck, J.

There is no evidence of usury in this case. The plaintiff sold his credit, which he had a right to do. (Kitchel v. Schenck, 29 N. Y. 515; Forgotston v. McKeon, 14 App. Div. 342.) There appears to be no collusion between him and the bank or broker involved. There was no loan made by the plaintiff. The transaction is not a cover for a usurious loan.

The transaction was not a building loan contract. The plaintiff made no loan and he had no building contract with defendants Avitabile. The reference in the mortgages to the use of the funds was unnecessary so far as the statutes are concerned, and was inserted for the protection of plaintiff’s indorsement. The language of the mortgages shows that the mortgages were designed as indemnity for the plaintiff, in case he was obliged to take up the notes which he had indorsed. (Gen. Bus. Law, § 371; Lien Law, [869]*869§§ 13, 22, as amd. by Laws of 1930, chap. 859; Weaver Hardware Co. v. Solomovitz, 235 N. Y. 321, 335.)

The hen of the mortgages is superior to the mechanics’ hens, and the plaintiff is entitled to a judgment of foreclosure, with costs.

So ordered.

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Bluebook (online)

140 Misc. 868, 252 N.Y.S. 413, 1931 N.Y. Misc. LEXIS 1655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schaich-v-avitabile-nysupct-1931.

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