Frank v. Hasing Realty Corp. , 234 A.D. 712 ( 1931 )

Order, in so far as it denies motion to discontinue the action as to defendant Harry Singer, reversed upon the law and the facts, with ten dollars costs and disbursements, and motion as to him granted, without costs. As to Hasing Realty Corporation order, in so far as it denies motion to strike out certain defenses and for judgment on the pleadings, reversed upon the law and the facts, without costs, and motion granted to the extent of striking out paragraphs 8, 9, 10, 11 and 12 of the answer, constituting the second defense thereof. The answer contains no counterclaim and the discontinuance of the action as against Harry Singer relieves him from the hazard of a deficiency judgment and, therefore, under settled authority, plaintiff’s application to discontinue should have been granted. As to the first defense, the complaint contains no affirmative allegation that the defendant corporation took the property subject to the mortgage in question. Until that fact appears upon the trial the defendant corporation is not barred from invoking the usury defense with respect to the inception of the mortgage at the time it was made by the individual defendants. (Merchants Ex. N. Bank v. Com. W’House Co., 49 N. Y. 635.) The matter may not be disposed of on the pleadings in their present state since it does not appear that the defendant corporation is estopped by reason of having taken the property subject to the incumbrance. (Freeman v. Auld, 44 N. Y. 50; Chamberlain v. Dempsey, 36 id. 144.) As to the second defense, the corporate defendant advanced no consideration for the extension. The defense of alleged usury on the extension of the due date is personal to the individual defendants. Lazansky, P. J., Young, Kapper and Carswell, JJ., concur; Davis, J., dissents as to striking out the answer of defendant Singer on the ground that it would deprive him of a substantial right, it appearing that he has a beneficial interest in the property in question.