Opinion
January 29, 1968
In an action to declare void and to cancel for usury a mortgage on plaintiffs' property, defendants appeal from (1) a decision of the Supreme Court, Nassau County, dated April 26, 1967, denying defendants' motion to dismiss the complaint and for summary judgment and granting plaintiffs' request for summary judgment in their favor and (2) a judgment of said court made accordingly on May 5, 1967. Judgment reversed, on the law, without costs, and motions denied. No questions of fact were considered on this appeal. In our opinion, the following triable issues of fact are presented: (1) whether the loan was made to the individual plaintiffs or to 164 Abbey Cleaners, Inc.; and (2) if the loan was made to the corporation, whether it was "wilfully and knowingly" made at a rate exceeding 25% per annum within the meaning of the applicable statutes (Penal Law, § 2401; General Obligations Law, § 5-521, subd. 3; see, Morrison v. Verdinal, 53 Hun 63, 65, affd. sub nom. Lydecker v. Verdinal, 126 N.Y. 630; American Sur. Co. of N.Y. v. Sullivan, 7 F.2d 605, 606). Appeal dismissed insofar as it is from the decision, without costs. No appeal lies from a decision. Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.