Ganz v. Lancaster

Van Brunt, P. J. (dissenting):

I dissent from the conclusions arrived at by Mr. Justice Rum-set. Even if at the time when the first extension was given Mrs. Lancaster was not personally liable to pay the mortgage in question, she became thereby liable and she was so situated in respect to the debt that her property, viz., the property mortgaged, the title to which she had acquired, was the primary fund for the payment of the mortgage debt; and lo save this appropriation of her property to the payment of the debt at that time she paid the $400 and agreed to assume the payment of the mortgage. It was to secure the forbearance of the debt for the payment of which her property was primarily liable that she paid the money and assumed the debt. It seems to me that this was clearly a usurious contract, being a payment to secure the forbearance of a sum of money which the property of one of the contracting parties was liable to pay.

McLaughlin, J., concurred.

Judgment modified as directed in opinion, and affirmed as modified, without costs.