418 Trading Corp. v. Oconefsky

• Decision Date: 04 June 1963
• Citation: 19 A.D.2d 593,240 N.Y.S.2d 956
• Parties: 418 TRADING CORP., Plaintiff-Appellant, v. Pearl OCONEFSKY, Lazar Oconefsky, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 956

240 N.Y.S.2d 956

19 A.D.2d 593

418 TRADING CORP., Plaintiff-Appellant, v. Pearl OCONEFSKY, Lazar Oconefsky, Defendants-Respondents.

Supreme Court of New York, Appellate Division, First Department.

June 4, 1963.

I. Anolic, New York City, for plaintiff-appellant.

N. Carmen, New York City, for defendants-respondents.

Judgment dismissing the complaint on the merits and granting judgment to defendants on their counterclaim, affirmed with costs, on the opinion of Mr. Justice LORETO, at Special Term. All concur except STEUER and EAGER, JJ., who dissent and vote to reverse and grant judgment in favor of plaintiff in the following memorandum by EAGER, J.

EAGER, Justice (dissenting).

The judgment for defendants should be reversed on the law and on the facts, and judgment of foreclosure and sale directed in favor of the plaintiff. The defendant wife and her attorney each testified that the agreement was that the loan was to be made to the Warren Hardware Corp., which was a corporation under the control of the individual defendants, and that such defendants were to guarantee payment of the same. Furthermore, the documents establish that this was the arrangement and that the defendants' bond and mortgage, which is the subject of this action, were executed to guarantee the payment of the loan. There was no evidence of any fraud, misrepresentation or undue pressure; and it being clear that the defendants voluntarily acceded to the arrangement, expressly made, whereby the loan was made to the corporation and whereby they as individuals guaranteed payment of the same, it is clear that the defense of usury was not available to them. (See Jenkins v. Moyse, 254 N.Y. 319, 172 N.E. 521, 74 A.L.R. 205; Bradley v. Selengut, 269 App.Div. 209, 54 N.Y.S.2d 457; Werger v. Haines Corporation, Sup., 94 N.Y.S.2d 691, affd. 277 App.Div. 1108, 101 N.Y.S.2d 361, affd. 302 N.Y. 930, 100 N.E.2d 189; Uno Equities, Inc. v. Sutton Place View Corp. (Gold, J.), N.Y.L.J., April 17, 1962, affd. 18 A.D.2d 796; Kings Mercantile Co. v. Cooper, 199 Misc. 381, 100 N.Y.S.2d 754; Shapiro v. Weissman, 19 Misc.2d 407, 187 N.Y.S.2d 233.) 37 Misc.2d 745, 234 N.Y.S.2d 747.

STEUER, J., concurs.