Investors Collateral Corp. v. Joyce

The counterclaim and defense alleged that the loan by plaintiff’s assignor to defendants, Joyce, secured by the mortgage under foreclosure, was made pursuant to a usurious agreement. The findings of the learned trial court that usury was not proved, is supported by the record (cf. Rosenstein v. Fox, 150 N. Y. 354, 364; Grannis v. Stevens, 216 N. Y. 583, 591; Carrington Bros. v. Gadsby, 237 App. Div. 195). In an action to foreclose a mortgage the allowance of costs is discretionary (cf. Empire Trust Co. v. Newport Eng. Co., 249 App. Div. 820; Civ. Prac. Act, § 1477). In the 543 absence of an award in the decision, costs were improperly incorporated in the judgment (Sagona v. Montalbano, 228 App. Div. 857). A plaintiff in an action to foreclose a mortgage is entitled to an additional allowance only if he recovers costs on a final judgment rendered in his favor (Civ. Prac. Act, §§ 1512, 1512-a, 1513; see Van Bel Co. v. Board of Educ., 241 App. Div. 609; Baranowsky Co. v. Guaranty Trust Co. of N. Y., 247 App. Div. 169, 172). Nolan, P. J., Beldoek, Ughetta, Kleinfeld and Christ, JJ., concur.