Berdan v. . Sedgwick
New York Court of Appeals
Appeal from an order of the General Term of the Supreme -'Court in the fifth district, affirming a judgment dismissing :the complaint. This is an action for the foreclosure of a mortgage made •by Stephen D. Dillaye and wife to the appellant. The action -was against Dillaye and wife and the respondents, who were .subsequent purchasers of the premises.
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Appeal from an order of the General Term of the Supreme -'Court in the fifth district, affirming a judgment dismissing :the complaint. This is an action for the foreclosure of a mortgage made •by Stephen D. Dillaye and wife to the appellant. The action -was against Dillaye and wife and the respondents, who were .subsequent purchasers of the premises. The defence of .usury was set up by the respondents, and the question whether, under the circumstances of the case, they had a right to set up that defence, presents the principal point on this appeal. The judge who tried the cause made his…
1Opinion of the Court
Hunt, C.
The general principles by which this case is to be decided, are well settled. The mortgage in suit has been adjudged to have been given upon an usurious agreement for the loan of money. This is not now controverted. The statutes of this State declare that all such agreements and all securities given as collateral to them are void. They are void, however, in a limited sense. They are not so absolutely void that the borrower is prevented from making payment, if he desires to do so. If he voluntarily does this, he cannot reclaim the money thus paid. They are not so far void, that the…
2Cases cited5 opinions
- Pratt v. AdamsNew York Court of Chancery · 1839
- Williams v. . TiltNew York Court of Appeals · 1867
- Post v. DartNew York Court of Chancery · 1841
- Mason v. . LordNew York Court of Appeals · 1869
- Cole v. SavageNew York Court of Chancery · 1844
3Cited by9 opinions
- Ewell v. DaggsSupreme Court of the United States · 1883
- Schafer v. . ReillyNew York Court of Appeals · 1872
- Bennett v. . BatesNew York Court of Appeals · 1884
- Union Dime Savings Institution v. WilmotNew York Court of Appeals · 1883
- Harper v. Building Ass'nWest Virginia Supreme Court · 1904
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