Judges: McLaughlin
Filed Date: 7/15/1919
Status: Precedential
Modified Date: 10/19/2024
This action was brought to foreclose a mortgage on an interest in real estate in the city of New York. The mortgage was for $15,000, which had, by payments, been reduced so that at the time the action was commenced, there was only claimed to be due $2,000 and interest. Two defenses were set up: (a) Usury; and (b) novation. The court at Special Term reached the conclusion that defendants had failed to establish the second defense, but had succeeded upon the first, and directed that the complaint be dismissed upon the merits. From the judgment entered to this effect an appeal was taken to the Appellate Division, where the same was affirmed, two of the justices dissenting. An appeal was then taken to this court.
The sole question presented upon the appeal is whether there is any evidence to sustain the finding that the mortgage sought to be foreclosed was the result of a usurious agreement. If so, the appellants must fail. The decision of the Appellate Division not being unanimous enables us to examine the record for the purpose of ascertaining that fact. (Heskell v. Auburn L., H. P.Co.,
After a careful consideration of the record I am unable to find any evidence to sustain the following findings:
(1) That when Bates was paid the amount of his loan the bond and mortgage, and the indebtedness covered thereby, were extinguished.
On the contrary, the mortgage was kept alive by agreement between the parties. This is clearly shown by the fact that a satisfaction was not given, but instead an *Page 56
assignment to the realty company. There is no doubt that a mortgage, when paid, may be kept alive for other purposes, when the rights of creditors and third parties have not intervened. (Hoy v. Bramhall,
(2) That the payment to Bates was made by Rieser and not by the realty company.
The fact that Rieser held nearly all the stock of the realty company did not destroy its legal entity nor prevent its performing legal corporate acts. It could make the payment to Bates and then, instead of having the mortgage satisfied, take an assignment. The assignment itself recites: "That I, Charles F. Bates * * * in consideration of the sum of Fifteen Thousand (15,000) Dollars * * * to me in hand paid by Myles Realty Company * * * the receipt whereof is hereby acknowledged," have sold, assigned, etc.
(3) That the realty company was a mere dummy and held the title for Rieser.
The realty company had held the title for upwards of a year. The assignment to it had been recorded and there is not a particle of evidence to indicate that it held such title other than for itself. Plaintiffs' witness, Armitage, testified, and his testimony was uncontradicted, that he told plaintiffs' testator, in the presence of Rieser, "It was an old mortgage on the premises; that it had existed there since 1908; that it had been assigned and was owned by the Myles Realty Company and that there was no question as to its validity."
(4) That the loan was made to Rieser and not to the realty company under a usurious agreement by which a bonus of $1,000 was paid to the lender. *Page 57
The only basis for this finding is the fact that Rieser was president of the realty company, owned nearly all of its stock and that he paid to plaintiffs' testator a bonus of $1,000 for making the loan. The fact that Rieser owned substantially all the stock of the company did not prevent its doing business as a corporation. It had the right to borrow money and if Rieser personally paid a bonus it did not in any way affect the transaction. Before the loan was made, at a stockholders' meeting duly called, a resolution was passed — two-thirds of the stockholders being present — authorizing the realty company to make the loan and to assign the mortgage as collateral security for its payment. The fact that Rieser guaranteed to pay the amount of the loan if the realty company did not, and to induce the making of the loan he paid $1,000, did not, in my opinion, affect the transaction in the least. The realty company was in need of money. An action was pending against Rieser to recover upwards of $2,000, which he ascertained could be settled for $1,000, and in addition thereto a loan could be obtained by the realty company of $15,000. It may very well be he thought this was a good way to end the litigation and obtain the money, but whether he did or not, his acts and purposes did not affect the assignment of the mortgage by the realty company. It received $15,000. The check which the plaintiffs' testator gave for the loan was payable to the realty company's order and the same was collected by it. There is no evidence to show that the realty company was a party to any agreement by which a bonus was agreed to be paid, or that it paid any part of the bonus. It is well settled that to establish usury, evidence must be produced to show a corrupt intent by both the borrower and the lender. (Hartley v. Eagle Ins. Co.,
The loan was made to the realty company. It was the primary debtor. Rieser was a secondary debtor, having *Page 58
guaranteed to pay the loan if the realty company did not. By express provision of the statute the realty company could not interpose a defense of usury. (General Business Law, § 374, Cons. Laws, ch. 20.) Rieser stood in no better position than it did. (Stewart v. Bramhall,
There being no evidence to sustain these findings there is no basis for the conclusions of law that the loan was made upon a usurious agreement, and, therefore, void, and that the mortgage could not be enforced.
The judgments appealed from, therefore, should be reversed and a new trial ordered, with costs to abide event.
HISCOCK, Ch. J., COLLIN, CUDDEBACK, CARDOZO, POUND and ANDREWS, JJ., concur.
Judgments reversed, etc.