Judgments reversed on the law and the facts and a new trial granted, costs to appellant to abide the event, upon the ground that the decision and judgments in favor of the defendants are contrary to the weight of the credible evidence. If it were true that the original mortgage was usurious, that defense was available in the foreclosure action, of which defense defendants in the foreclosure action did not avail themselves. Aaron Bonuck was of sufficient experience in real estate transactions to know of the utility of such a defense if it were honest. The failure or refusal to interpose it as a" defense casts discredit upon his testimony in its entirety. Taxes amounting to upwards of $800 existed against the property when the note transaction was entered into, and plaintiff’s claim that his money in excess of $10,000 was utilized to pay a part of these taxes, and that the balance was given to Aaron Bonuck, was, in the circumstances, entitled to credence. Lazansky, P. J., Kapper, Carswell, Scudder and Tompkins, JJ., concur.
Green v. Bonuck
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