Smith v. Cross
New York Supreme Court
Appeal from special term. Action by Lucy A. Smith, as administratrix, and another, against Moses H. Cross and Mary J. Cross. The complaint was dismissed, and plaintiffs appeal. Modified. In August, 1877, this action was commenced to foreclose a mortgage given collaterally to a bond executed by Moses H. Gross to one Samuel Wilson. The mortgage was given to secure the consideration stated therein, of $5,000, and. covered lands in Jefferson county.
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Appeal from special term. Action by Lucy A. Smith, as administratrix, and another, against Moses H. Cross and Mary J. Cross. The complaint was dismissed, and plaintiffs appeal. Modified. In August, 1877, this action was commenced to foreclose a mortgage given collaterally to a bond executed by Moses H. Gross to one Samuel Wilson. The mortgage was given to secure the consideration stated therein, of $5,000, and. covered lands in Jefferson county. In the complaint it is averred that “the said mortgage was given to secure a part of the purchase price of the above described premises.” The answer…
1Opinion of the CourtHardin, P. J.
Plaintiffs’ learned counsel insists that the referee erred in making certain findings of fact which support plaintiffs’ right to recover the amount advanced by the assignee of the mortgage, to wit, $4,500, notwithstanding the defense of usury, in accordance with the principles laid down in Miller v. Zeimer, 111 N. Y. 443, 18 N. E. 716. It seems the complaint was like an ordinary one in mortgage foreclosure cases, and that the prayer in the complaint was for a judgment declaring $5,000 of principal to be due upon the mortgage. However, the answer sets up in detail the facts relating to the…
2Cases cited7 opinions
- Day v. . Town of New LotsNew York Court of Appeals · 1887
- Hubbell v. . MoulsonNew York Court of Appeals · 1873
- Miller v. . ZeimerNew York Court of Appeals · 1888
- Romeyn v. . SicklesNew York Court of Appeals · 1888
- Dunham v. . CudlippNew York Court of Appeals · 1883
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3Cited by2 opinions
- Tucker v. City of UticaAppellate Division of the Supreme Court of the State of New York · 1898
- Tucker v. City of UticaAppellate Division of the Supreme Court of the State of New York · 1898