Silberman v. Isaac Cades, Inc., 67.

• Decision Date: 02 February 1931
• Docket Number: No. 67.,67.
• Citation: 153 A. 473
• Parties: SILBERMAN v. ISAAC CADES, Inc., et al.
• Court: New Jersey Supreme Court

153 A. 473

SILBERMAN

v. ISAAC CADES, Inc., et al.

No. 67.

Court of Errors and Appeals of New Jersey.

Feb. 2, 1931.

Appeal from Court of Chancery.

Suit by Max Silberman against Isaac Cades, Inc., and others. From a decree for plaintiff, defendants appeal.

Affirmed.

John C. Reed, of Atlantic City, for appellants.

Clarence L. Cole, of Atlantic City, for respondent.

GUMMERE, C. J.

The bill in this case was filed to foreclose a mortgage for $10,000 made and executed by the defendant Isaac Cades, Inc., to one Herman J. Finn, and afterward assigned by the latter to the complainant, Silberman. The defense set up in the answer filed in the cause was that, although this corporation had executed the bond and mortgage, the real debtor was not the corporation, but was Isaac Cades individually, who was the beneficial owner of the mortgaged premises, although the title stood in the name of the corporation; that the loan, to secure the payment of which the bond and mortgage were given, was made to Cades, and not to the corporation, and was not made by Finn, the obligee and mortgagee named in those instruments, but by the complainant, Silberman, Finn being a mere dummy in the transaction; that the amount actually loaned by Silberman to Cades was not $10,000, but only $8,500; that the corporate defendant was formed and the mortgaged premises conveyed to it for the sole purpose of preventing Cades from setting up usury as a defense against Silberman in case default was made in the payment, such defense, by force of our statute relating to usury (4 Comp. Stat. 1910, vol. 4. p. 5706, § 7), not being open to a corporate defendant; and that, by reason of these facts, the complainant was only entitled to recover the money actually loaned by him to Cades after deducting from that amount the interest which had theretofore been paid upon the usurious loan.

The hearing of the case resulted in a decree in favor of the complainant for the full amount of his claim, based upon a finding that the defense of usury had not been sustained by the proofs. From that decree the defendant below has appealed to this court.

If the determination of this appeal depended upon whether or not the proofs in the case justified the finding of the Vice Chancellor on the question of usury, we should be inclined to hold that they did. We do not, however, deem it necessary to decide that question. As has already been stated, the answer recites that the defendant corporation was formed for the...