114 N.Y.S. 684 | N.Y. Sup. Ct. | 1908
The defense of usury is interposed to the plaintiff’s action of foreclosure of a mortgage upon the defendant’s real property, based upon plaintiff’s alleged exaction, when the mortgage loan was closed, of the sum of thirty dollars, the amount of the tax paid to the register of the county of ¡New York upon recording the mortgage. Defendant also claims that the complaint does not state a cause of action in that it omits affirmatively to allege payment of the mortgage recording tax. The latter contention is without merit. The complaint states a complete cause of action. The cause of action is not affected by the failure to pay the recording tax, although it may be that a plaintiff could not succeed in establishing his case without proof of the payment of the tax, because of the provision in the statute that the mortgage may not be received in evidence unless the tax has been paid. It has been held that the failure of a foreign corporation doing business in this State to allege due authority therefor does not affect the substance of plaintiff’s claim, and is not available upon a demurrer that the complaint fails to state a cause of action. Emmerich Co. v. Sloane, 108 App. Div. 380. Coming now to the defense of usury, it appears that the mortgage was to bear interest at the rate of six per cent, per annum; that the plaintiff retained a title company to examine and pass upon the defendant’s title to the mortgaged premises; that at the time of closing the loan the plaintiff delivered to the defendant a check for six thousand dollars, the full amount of the
Judgment for plaintiff.