Opinion
March, 1935.
Action to foreclose a mortgage, defense usury. The trial court determined that the mortgagee under a second mortgage was not permitted to plead that the earlier mortgage was tainted with usury, and struck out such defense, but permitted the mortgagors to plead the defense of usury and determined that it had been sustained. The decision contained a finding that money had been paid by the mortgagors as a consideration for an extension of the time of payment. This was not material on the issue of usury which was the ground upon which the court dismissed the complaint. The judgment is affirmed, with costs. The eighth finding of fact contained in the decision is reversed upon the ground that it is immaterial on the issue of usury. Hill, P.J., McNamee, Crapser, Bliss and Heffernan, JJ., concur.