Grissler v. . Powers
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the first judicial department affirming a judgment in favor of defendant Powers, entered on a decision of the court on trial at Special Term.
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Appeal from judgment of the General Term of the Supreme Court in the first judicial department affirming a judgment in favor of defendant Powers, entered on a decision of the court on trial at Special Term. This action was brought by plaintiffs as judgment creditors of defendant Browning, after return of execution unsatisfied, to have a trust declared in and to require defendant Powers to account for the excess of a sum received by him on sale of a bond and mortgage over the sum paid by him therefor. Defendant Powers alone appeared and answered. The court found, in substance, that in 1868…
1Opinion of the CourtAndrews, J.
This action is without- precedent, and cannot he maintained upon principle. The plaintiffs stand in the shoes of Browning, the mortgagor, and the case may be treated as if it was an action brought by him to compel the defendant to account for $3,400, the difference between the face of the mortgage and the sum for which the defendant purchased it.
The plaintiffs cannot recover upon any right of action arising under the usury statute. The question of usury was not presented by the pleadings, and there is no finding, or request to find, that the mortgage was usurious. Besides if Browning could,…
2Cases cited2 opinions
- Freeman v. . AuldNew York Court of Appeals · 1870
- Payne v. . BurnhamNew York Court of Appeals · 1875
3Cited by10 opinions
- Lindsay v. CooperSupreme Court of Alabama · 1891
- Bicocchi v. Casey-Swasey Co.Texas Supreme Court · 1897
- Payne v. First Nat. Bank of ColumbusTexas Commission of Appeals · 1927
- Miller v. . ZeimerNew York Court of Appeals · 1888
- Conway National Bank v. PeaseSupreme Court of New Hampshire · 1912
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