Legal Opinion

O'Brien v. Ferguson

New York Supreme Court

Decided September 15, 1885Published

Appeal fiom a judgment in favor of tbe plaintiff, entered upon the trial of this action by the court, without a jury. . Prior to the trial by the court, certain specific questions had been submitted to and passed upon by a jury.

1Opinion of the Court

LeaeNed, P. J.:

This action is brought, first, to restrain a statutory foreclosure of a mortgage, and, second, to compel the satisfaction thereof. The ground of relief is alleged usury. The judgment is that the mortgage is usurious, and that the defendant execute a discharge thereof. There is no injunction restraining the foreclosure.

It might be that any person, owning the land, could bring an action to restrain, on the ground of usury, a statutory foreclosure, without a tender of the money borrowed. But it was a well-settled-principle of equity that when an action was brought affirmatively to…

2Cases cited13 opinions

  1. Schermerhorn v. . TalmanNew York Court of Appeals · 1856
  2. Shufelt v. ShufeltNew York Court of Chancery · 1841
  3. Sands v. . ChurchNew York Court of Appeals · 1852
  4. Union Dime Savings Institution v. WilmotNew York Court of Appeals · 1883
  5. Fanning v. DunhamNew York Court of Chancery · 1821

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