Pollack v. Tausig , 240 A.D. 1009 ( 1933 )

Order striking out the answer and dismissing the counterclaims reversed on the law and the facts, with ten dollars costs and disbursements, and matter remitted to the Special Term to determine the question of usury only in the extension or extensions of the mortgage as presented by the first defense. The affidavits sufficiently establish the right of the appellant to a determination, upon án oral hearing, of this defense. Even though the extension or extensions be found to have been usurious, the mortgage is not thereby invalidated. The second and third defenses set up by way of counterclaim present matters that, undisputedly, are res judicata. The fourth defense is insufficient to stay the plaintiff’s right to a foreclosure and sale. As to the matter of the deficiency judgment sought, respondent conceded on the argument that he will not enter any such judgment. According to the determination of the Special Term on the issue of usury, the reference to compute will proceed on that basis. Lazansky, P. J., Young, Kapper and Davis, JJ., concur; Carswell, J., concurs in result.