Carow v. Kelly , 59 Barb. 239 ( 1871 )

By the Court, Cardozo, J.

This case was reserved, on the argument, merely upon the point whether the judge erred in holding that the mortgage, under which the plaintiff" claimed, could be avoided for usury, by a judgment and execution creditor. The precise point was held in conformity with the ruling below, in Dix v. Van Wyck, (2 Hill, 522,) and that case was recognized and cited as law by the Court of Appeals in the recent case of Mason v. Lord, (40 N. Y. 488.) I think it unnecessary, therefore, to review the authorities relied upon by the appellant’s counsel. They do not conflict with the decision in Dix v. Van Wyck, but are simply applications of the well recognized rule that the defense of usury is a personal one, and cannot be pleaded by one having neither privity of estate nor of blood with the borrower—that is to say, by a mere stranger. But a persommko, like an execution .creditor, asserts a lien upon the property, is not a stranger, within the meaning of the rule. (Thompson v. Van Vechten, 27 N. Y. 568. Dix v. Van Wyck, supra.)

The judgment should be affirmed.

Ingraham, P. J., Cardozo and Geo. G. Barnard, Justice.]