Opinion
July 5, 1961
In an action by an assignee to foreclose a second mortgage on real property, in which defendants Joseph A. Joyce and Theresa V. Joyce, the mortgagors and owners, asserted a defense and counterclaim of usury, said defendants appeal from a judgment of the Supreme Court, Nassau County, dated March 8, 1961 and entered March 13, 1961, upon the decision of the court, after a nonjury trial, in favor of plaintiff granting foreclosure and sale. The judgment included an award to plaintiff of costs and disbursements as well as an additional allowance, although the decision made no reference to such items. Judgment modified on the law by striking therefrom the provisions: (a) which award to plaintiff the sum of $383.76 for costs and disbursements and the sum of $21.50 as an additional allowance, and (b) which direct the Referee to pay such sums, with interest thereon, to the plaintiff. As so modified, judgment affirmed, without costs. The findings of fact contained in the decision are affirmed. The counterclaim and defense alleged that the loan by plaintiff's assignor to defendants, Joyce, secured by the mortgage under foreclosure, was made pursuant to a usurious agreement. The findings of the learned trial court that usury was not proved, is supported by the record (cf. Rosenstein v. Fox, 150 N.Y. 354, 364; Grannis v. Stevens, 216 N.Y. 583, 591; Carrington Bros. v. Gadsby, 237 App. Div. 195). In an action to foreclose a mortgage the allowance of costs is discretionary (cf. Empire Trust Co. v. Newport Eng. Co., 249 App. Div. 820; Civ. Prac. Act, § 1477). In the absence of an award in the decision, costs were improperly incorporated in the judgment ( Sagona v. Montalbano, 228 App. Div. 857). A plaintiff in an action to foreclose a mortgage is entitled to an additional allowance only if he recovers costs on a final judgment rendered in his favor (Civ. Prac. Act, §§ 1512, 1512-a, 1513; see Van Bel Co. v. Board of Educ., 241 App. Div. 609; Baranowsky Co. v. Guaranty Trust Co. of N.Y., 247 App. Div. 169, 172). Nolan, P.J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.