119 Misc. 354 | N.Y. Sup. Ct. | 1922
The allegations in the complaint to the effect that the mortgagor “ received the money for which the mortgage was given and retained the same and the benefits thereof ” were unnecessary to a complete statement of the cause of action for foreclosure. The answer, therefore, denies only immaterial allegations and thus raises no issue. The denial is also ineffective because in the form of a negative pregnant. The defense at most would be partial and, if valid at all, would be subject to the requirements of the Civil Practice Act (§ 262). As a corporation cannot plead usury (Gen. Business Law, § 374) the fact asserted in the defendant’s affidavit, namely, that less than the face amount was received by the mortgagor, seems to be at most a matter for consideration in connection with computation of the amount due. See Rollins v. Barnes, 11 App. Div. 150; Scheidell v. Llewellyn Realty Co., 177
Ordered accordingly.
