Brown v. Robinson , 160 N.Y.S. 287 ( 1916 )

McLaughlin, J. (dissenting):

I am unable to distinguish this case from Hall v. Eagle Insurance Company (151 App. Div. 815; affd., without opinion, 211 N. Y. 507). The pleadings, and the evidence adduced at the trial, including the instruments involved in the transaction, are similar to those in the Hall case. The court there held that the instruments executed at the time of the loan was made were, in effect, a mortgage to secure defendant what it was legally entitled to recover, which was the sum advanced, with legal interest thereon. So I think we should here hold, following the Hall case, that the instruments delivered to the Eagle Insurance Company are equitable mortgages and a recovery should be had thereon to the amount of the money actually advanced, with legal interest.

I am, therefore, unable to concur in the prevailing opinion, in so far as it holds that such instruments are usurious, null and void. I think the judgment should be affirmed.

Judgment modified as directed in opinion, and as modified affirmed, with costs to plaintiff payable out of the estate; costs to defendant George H. Robinson against Eagle Insurance Company, and costs to Empire Trust Company against George H. Robinson. Order to be settled on notice.