Schweizer v. Hickok — 141 N.Y.S. 15

Majority

p. 15

SCHWEIZER et al. v. HICKOK et al.

(Supreme Court, Appellate Division, Second Department.

April 11, 1913.)

Headnote

Usuby (§ 56*)—Acts Constituting.

The defense of usury interposed in a suit to foreclose a mortgage is not available, where the attorney representing the mortgagee deducted $400 from the $2,000 loaned, but no part thereof was returned to the mortgagee.

[Ed. Note.—For other cases, see Usury, Cent. Dig. §§ 122-127; Dec. Dig. § 56.^[1] ]

Appeal from Special Term, Westchester County.

Action by William Schweizer and another against William P. Hickolc and others. From a judgment for plaintiffs, defendant named appeals. Affirmed.

See, also, 152 App. Div. 891 , 136 N. Y. Supp. 1147 .

Argued before BURR, THOMAS, CARR, RICH, and STAPLE-TON, JJ.

Isaac N. Miller, of New York City, for appellant.

Edwin G. Davis, of New York City, for respondents.

This appeal is from a judgment in favor of the plaim tiffs in an action brought to foreclose a mortgage given by defendant William P. Hiclcok to plaintiffs to secure the payment of $2,000.

The defense of usury is interposed, and while the record discloses that the attorney who represented the plaintiffs took advantage of defendant’s necessity to the extent of deducting $400 from the $2,000 loaned, there is no evidence that any part of this sum was returned

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to the mortgagees; in fact, it appears that none was returned. Under the circumstances, we must affirm the judgment; but it will.be without costs.

Judgment affirmed, without costs. All concur.