Barocas v. PMG Holding Corp.

• Decision Date: 29 March 1971
• Citation: 321 N.Y.S.2d 294,36 A.D.2d 763
• Parties: Joseph BAROCAS et al., as Executors and Executrices, etc., et al., Appellants, v. PMG HOLDING CORP. et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 294

321 N.Y.S.2d 294

36 A.D.2d 763

Joseph BAROCAS et al., as Executors and Executrices, etc., et al., Appellants, v. PMG HOLDING CORP. et al., Respondents, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

March 29, 1971.

Jack Vogel, Brooklyn, for plaintiffs-appellants.

The Firm of Henry V. Pecora, Manhasset, for defendants-respondents.

Before MUNDER, Acting P.J., and MARTUSCELLO, SHAPIRO, GULOTTA and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In an action to foreclose a mortgage on real property, plaintiffs appeal from so much of an order of the Supreme Court, Nassau County, dated December 24, 1970 and entered February 10, 1971, as, after denying respondents' motion to vacate an order appointing a receiver, directed a hearing to be held for a determination as to whether the making of the mortgage constituted criminal usury in violation of section 190.40 of the Penal Law.

Order reversed insofar as appealed from, with $10 costs and disbursements.

Although the point is not raised by the parties, a reference to hear and determine is appealable (Davidson v. Sterngass, 279 App.Div. 875, 110 N.Y.S.2d 346) and we find that the separate hearing herein ordered was a reference to hear and determine.

Since the order appealed from denied the motion to vacate the appointment of a receiver, it was an improper exercise of discretion for Special Term to order a separate hearing on the issue of criminal usury, not to aid in the determination of the motion, but to obtain an advance determination, prior to the trial, of but one of the issues raised by the pleadings.