Loew v. McInerney
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, Mary Mclnerney and others, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 3d day of June, 1913, upon the decision of the court after a trial before the court without a jury.
1Opinion of the Court
Stapleton, J.:
The action is against the mortgagors for the foreclosure of a mortgage on real property. The defendants pleaded new matter — that the mortgage was the result of an usurious *514transaction — and demanded affirmative relief. The plaintiff did not reply. The court denied a motion for judgment on the counterclaim.
It must be admitted that the facts stated constitute a counterclaim. Usury is a substantive defense and not a counterclaim under ordinary circumstances. (Equitable Life Assurance Soc. v. Cuyler, 75 N. Y. 511, 515.) It may also be pleaded as a counterclaim. (Geenia v. Keah, 66…
2Cases cited12 opinions
- Richard Deeves & Son v. Manhattan Life InsuranceNew York Court of Appeals · 1909
- Equitable Life Assurance Society of United States v. CuylerNew York Court of Appeals · 1878
- American Guild v. . DamonNew York Court of Appeals · 1906
- Jermyn v. SearingAppellate Division of the Supreme Court of the State of New York · 1910
- McCrea v. HopperAppellate Division of the Supreme Court of the State of New York · 1898
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3Cited by4 opinions
- Caraccia v. SchoenbergAppellate Division of the Supreme Court of the State of New York · 1936
- Charlton v. WardNew York Supreme Court · 1918
- Gibson v. BrownNew York Supreme Court · 1939
- A. B. Aldus Realty Co. v. BreslofCity of New York Municipal Court · 1928