Empire Trust Co. v. Coleman — 222 N.Y. 577

Majority

p. 577

Empire Trust Company, Respondent, v. Charles W. Coleman, as Executor and Trustee under the Will of Charles Donohue, Deceased, et al., Appellants.

Headnote

Empire Trust Co. v. Coleman, 167 App. Div. 912 , affirmed.

(Argued November 27, 1917;

decided December 18, 1917.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 18, 1915, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose three mortgages upon certain premises in Nassau county. The defense was usury. The

p. 578

Special Term held that while usury was proven as a fact the only penalty which accrued to the plaintiff was a loss of any unpaid interest. Accordingly, therefore, it decreed judgment for the amount of the principal sum due, namely, $160,000. Upon appeal the Appellate Division modified the judgment by allowing to the plaintiff interest upon the principal sum from the date of the commencement of the action, and as so modified affirmed the judgment.

Louis C. Haggerty for appellants.

Stephen H. Olin for respondent.

Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cuddeback, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.