Bebell v. Ehrlich

Headnote

Bebell v. Ehrlich, 176 App. Div. 884 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 4, 1917, reversing a judgment in favor of defendants entered upon the report of a referee dismissing the

complaint as to the plaintiff Bebell and granting a new trial. The action was brought by the plaintiffs to foreclose a mortgage upon certain real property situated in Queens and Nassau counties. Emeline Roffe, the appellant, holder of a subsequent mortgage on said premises, and the trustee in bankruptcy of the owner of the equity of redemption were the only defendants who .answered. Each answer set up an affirmative defense of usury. At the close of the trial the defendant Roffe amended her answer by adding the defense of payment. The trustee in bankruptcy defaulted in appearance on the trial and no testimony was offered by him or on his behalf to sustain the allegations of his answer. The referee dismissed the complaint upon the merits as to the plaintiff Bebell, holding that the mortgage in so far as it was held by him was void. The mortgage in so far as it was held by the plaintiff Hodges was adjudged valid and judgment of foreclosure was entered accordingly. Bebell appealed to the Appellate Division from so much of said judgment as declared his interest in- said mortgage void, and the Appellate Division reversed the judgment of the trial court, so far as appealed from, and granted a new trial on the grounds that the finding of usury and of payment were against the weight of evidence, that the defendant Roffe was incompetent to make the defense of usury, and that in any event, upon the evidence, plaintiff Bebell was entitled to a lien for the payments made by bim of taxes and interest upon a prior mortgage.