| N.Y. App. Div. | Feb 28, 1977
In an action, inter alia, to foreclose a mortgage on real property, and for legal fees due pursuant to said mortgage, defendants appeal from a judgment of the Supreme Court, Kings County, entered May 18, 1976, after a nonjury trial, which, inter alia, fixed the amount due plaintiff and directed that the mortgaged premises be sold. The appeal brings up for review an order of the same court, dated May 12, 1976, which awarded plaintiff $1,500 as legal fees. Judgment and order affirmed, with one bill of costs. A party asserting the defense of usury must establish it by " 'clear evidence as to all the elements essential thereto’ ” (Giventer v Arnow, 37 NY2d 305, 309). The trial court’s holding that the defense was not established "clearly and decisively”, therefore, embodied the correct standard of proof. The note and mortgage here provided for legal fees of 15% of the principal balance and interest due. Here, the trial court considered the reasonable value of the legal fees to be $1,500, which is less than 10% of the amount found to be due plaintiff (cf. General Lbr. Corp. v Landa, 13 AD2d 804). Considering the fact that a four-day trial was involved, such award does not appear to be unreasonable. Hopkins, Acting P. J., Cohalan, Damiani and Hawkins, JJ., concur.