Franklin Nat. Bank v. Wall St. Commercial Corp.
| Decision Date | 01 July 1964 |
| Citation | 21 A.D.2d 878,251 N.Y.S.2d 892 |
| Parties | FRANKLIN NATIONAL BANK, Appellant, v. WALL STREET COMMERCIAL CORPORATION and John de Lyra, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Kaye, Scholer, Fierman, Hays & Handler, New York City, for appellant; Charles H. Cohen, New York City, of counsel.
Francis J. Alwill, New York City, for respondents.
Before UGHETTA, Acting P. J., and KLEINFELD, BRENNAN, HILL and RABIN, JJ.
MEMORANDUM BY THE COURT.
In an action upon a promissory note in the face amount of $90,000, containing a provision which requires the debtor to pay all costs and expenses of any action to enforce the note, plus an attorney's fee of 20% of the principal sum, the plaintiff bank appeals: (1) from so much of an order of the Supreme Court, Nassau County, dated December 18, 1963, as denied its motion for summary judgment on its cause of action for attorney's fees in the sum of $18,000 and, instead, ordered a severance thereof and directed that the issue as to the reasonableness of said fees be determined upon a hearing; and (2) from so much of the judgment entered December 26, 1963 upon said order in its favor, as failed to include as part of its recovery the amount of said attorney's fees.
Order and judgment, insofar as appealed from, affirmed, without costs.
In denying the motion, the Special Term held that while 20% of the unpaid balance of a note may be considered reasonable in a particular case (citing General Lumber Corp. v. Landa, 13 A.D.2d 804, 216 N.Y.S.2d 33, where the principal sum was approximately $2,000 and the attorney's fee $400), in the instant case a factual issue is presented as to the reasonableness of the stipulated charge (see 40 Misc.2d 1003, 244 N.Y.S.2d 491). We affirm upon that ground.
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