From Casetext: Smarter Legal Research

Shute v. Stattman

Appellate Division of the Supreme Court of New York, Second Department
May 27, 1938
254 App. Div. 783 (N.Y. App. Div. 1938)

Opinion

May 27, 1938.

Present — Lazansky, P.J., Carswell, Davis, Johnston and Taylor, JJ.


In an action to foreclose a mortgage, in which defendants Stattman pleaded usury, judgment modified by eliminating the provision therein which permits defendant Herman Stattman to recover from the plaintiff $247.50, with interest from April 1, 1934, and as so modified the judgment is unanimously affirmed, without costs. This sum represents interest in excess of the legal rate which defendants Stattman paid by reason of an independent usurious agreement that had no relation to the original transaction. There is no basis for an affirmative judgment in defendant's favor, because they failed to plead a counterclaim for the recovery of these usurious payments and, in any event, an action therefor is required to be commenced within one year after the payment. (General Business Law, § 381.) Conclusion of law No. 8 is reversed. Appeal from findings of fact, conclusions of law and decision dismissed. No appeal lies therefrom.


Summaries of

Shute v. Stattman

Appellate Division of the Supreme Court of New York, Second Department
May 27, 1938
254 App. Div. 783 (N.Y. App. Div. 1938)
Case details for

Shute v. Stattman

Case Details

Full title:VORA B. SHUTE, Appellant, v. HERMAN STATTMAN and TILLIE STATTMAN…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 27, 1938

Citations

254 App. Div. 783 (N.Y. App. Div. 1938)

Citing Cases

Mill Street Realty, Inc. v. Reineke

The Supreme Court properly granted the defendants' motion to dismiss the complaint on the ground that the…

In re Garcia

In fact, Section 215(6) contemplates that actual payment was made inasmuch as case law has held that the…