Opinion
January 29, 1937.
In an action to recover on a bond accompanying a mortgage on real property, where the mortgage has been cut off by the foreclosure of a prior mortgage, judgment entered upon a verdict of a jury in favor of defendants unanimously affirmed, with costs. The defense was usury. The exact amount paid by the obligees was a question of fact to be determined by the jury. This question having been resolved in favor of defendants, we are not disposed to interfere with the verdict. The testimony of the attorney who handled the transaction was properly admitted on the trial, as it was not privileged under section 353 of the Civil Practice Act, for the reason that the parties on both sides consulted this witness for their mutual benefit. ( Hurlburt v. Hurlburt, 128 N.Y. 420, 424.) Lazansky, P.J., Carswell, Davis and Adel, JJ., concur; Close, J., not sitting.