Opinion
November 30, 1970
Appeal from so much of an order of the Supreme Court, Nassau County, dated June 23, 1970, as denied plaintiff's motion for summary judgment in lieu of a complaint insofar as the motion was made against defendant Frank Schupak and as permitted the latter to interpose the defense of usury. Order reversed, on the law, with $10 costs and disbursements, and summary judgment granted in favor of plaintiff against defendant Frank Schupak. Plaintiff, as assignee, sues upon a mortgage note signed on behalf of the corporate defendant mortgagor by its president, and also signed by its president individually in the lower right hand corner of the note without further indication of his status. The Special Term granted summary judgment against the corporate defendant but held that, since the individual defendant had signed as a maker, he was entitled to raise the claimed defense of usury. It is clear that, if the obligations represented by the notes were those of the defendant individually, he would be entitled to this defense even though the borrowed funds were expected or intended to be used for corporate purposes ( Ranhand v. Sinowitz, 26 N.Y.2d 232, 235). However, the mere fact that he signed as a maker is not dispositive of the issue at bar, for the uncontradicted facts are that he did not personally benefit by the loan or pay any of the consideration for the loan; nor was his property the subject of the mortgage. A different case would be here if this defendant were the sole signatory (see Ranhand v. Sinowitz, supra). Therefore, whether we view his signature as ambiguous (former Negotiable Instruments Law, § 36, subd. 6; see, also, Uniform Commercial Code, § 3-402) or as that of an accommodation maker (former Negotiable Instruments Law, § 55; see, also, Uniform Commercial Code, § 3-415, subd. [1]), the legal effect is the same — he is to be treated as an indorser or guarantor of his comaker's obligation and, under familiar principles, the defense of usury is unavailable to him if it is unavailable to his comaker ( Leader v. Dinkler Mgt. Corp., 20 N.Y.2d 393; Union Estates Co. v. Adlon Constr. Co., 221 N.Y. 183). Since no triable issues are raised by the papers, it was improper to deny summary judgment against the individual defendant ( Arrow Sav. Loan Assn. v. Karick Realty Corp., 35 A.D.2d 688; Pink v. L. Kaplan, Inc., 252 App. Div. 490; Rockmore v. Epstein, 127 Misc. 526). Christ, P.J., Rabin, Hopkins, Munder and Latham, JJ., concur.