Bank v. Van Antwerp
New York Supreme Court
Motion for judgment in a foreclosure suit. This was an action by David Banks against Peter Yan Antwerp and others, for the foreclosure of a mortgage. The defendants pleaded usury. The substance of the statements of the answer relative to the defence, is given in the opinion.
1Opinion of the CourtRoosevelt, J.
—Usury as a defence, standing upon the same footing in principle as an action for the recovery of a penalty or forfeiture, the party setting it up must aver clearly every particular necessary to such a recovery, and must distinctly negative every supposable fact which, if true, would render the transaction innocent or lawful.
In the present case the defendants allege that the mortgage sought to be foreclosed, although dated on the first of the month, was not in fact executed until August 24, 1846; that it was made to secure the juincipal sum of $3000 loaned to the defendant Yan Antwerp, on…
2Cited by2 opinions
- Gaston v. McLeranMultnomah County Circuit Court, Oregon · 1872
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