Bebell v. Ehrlich , 176 A.D. 884 ( 1916 )

Judgment reversed and new trial granted, costs to abide the event, upon the grounds: (1) That we think that the finding of usury was against the greater weight of the evidence; (2) that the defendant Roft'e took her mortgage by its terms subject to the note and mortgage security in suit, and, therefore, is incompetent to make the defense of usury; (3) that the finding and conclusion that the payments, aggregating §9,000, made by the plaintiff Bebell on account of the note in suit, were to that extent in satisfaction of the notei were against the evidence; and (4) that in any event, upon the evidence, the plaintiff Bebell was entitled, to be allowed a lien for the payments of taxes and interest upon the prior mortgage made by him. Carr, Staple-ton, Mills and Putnam, JJ., concurred; Rich, J., dissented.