Ednom Securities Corp. v. Rockaway Construction Co. , 234 A.D. 867 ( 1931 )

Judgment reversed upon the law and the facts, with costs, and judgment of foreclosure and sale directed, with costs. The title to the property given by the Rockaway Construction Co., Inc., in exchange for the premises mortgaged was in that company for upwards of a year. The credible evidence is that the plaintiff knew nothing of any claim of individual ownership by the respondent, Minnie Schettino. Its previous dealings with the Rockaway Construction Co., Inc., did not give rise to any suspicion that it was not again loaning money to that corporation. Even if the plaintiff had been requested to loan to an individual it was privileged to refuse to do-so and to insist upon a corporate borrower. Such a transaction would not be illegal per se. (Jenkins v. Moyse, 254 N. Y. 319.) The testimony of the respondent’s husband was not only unsatisfactory but was incredible as matter of law. The trial court found that he falsified in regard to material testimony affecting notations which he placed upon a check which was for precisely the amount due for back interest and amortization, and the falsity of his testimony in this particular should have called for a rejection of his remaining testimony from which the inference was drawn that the corporation that he controlled was used as a cloak to conceal an alleged illegal transaction with his wife. The findings that there was an illegal agreement to extend the mortgage were contrary to the credible evidence and should be reversed, as should also the findings that the mortgage transaction was usurious. Lazansky, P. J., Young, Kapper, Hagarty and Tompkins, JJ., concur. Order will provide for a reversal of inconsistent findings and for new findings and conclusions of law; same to be settled on notice.