Klein v. Meisels

Appeal from an amended judgment of the Supreme Court, entered in the Greene county clerk’s office on December 16, 1936, upon the decision of Hon. G. D. B. Hasbrouek, official referee. This is an action to foreclose two mortgages on real estate, the first for $8,000 and the second for $1,000. The evidence sustains the official referee in his finding that the $8,000 mortgage was usurious and that the mortgagors received only $7,000 consideration for it. When it came due the time of payment was extended by an extension agreement executed by the original parties to the mortgage which states that there was then due and unpaid on the bond and mortgage $8,000 of principal. At the same time the second mortgage of $1,000 was given by the same mortgagors to the same mortgagee. The two mortgages were then assigned to plaintiff. The official referee has found that, although the original $8,000 mortgage was usurious, the plaintiff had no notice of this fact, and that the mortgagors represented to him that it was valid and that 604 there was $8,000 of principal unpaid thereon, and that the mortgagors were, therefore, estopped from claiming that the mortgage was usurious and void to the extent of $7,000, which was the amount actually paid therefor by the plaintiff on the purchase thereof. This case apparently comes squarely within the rule of Miller v. Zimmer (111 N. Y. 441). Judgment unanimously affirmed, with costs. Present — Hill, P. J., McNamee, Crapser, Bliss and Heffernan, JJ.