Opinion
October, 1922.
Frank M. Holahan, for plaintiff.
Joseph Zeamans ( Harold R. Zeamans, of counsel), for defendants E.M. Kane Company, Inc., and Harry S. Babcock.
The allegations in the complaint to the effect that the mortgagor "received the money for which the mortgage was given and retained the same and the benefits thereof" were unnecessary to a complete statement of the cause of action for foreclosure. The answer, therefore, denies only immaterial allegations and thus raises no issue. The denial is also ineffective because in the form of a negative pregnant. The defense at most would be partial and, if valid at all, would be subject to the requirements of the Civil Practice Act (§ 262). As a corporation cannot plead usury (Gen. Business Law, § 374) the fact asserted in the defendant's affidavit, namely, that less than the face amount was received by the mortgagor, seems to be at most a matter for consideration in connection with computation of the amount due. See Rollins v. Barnes, 11 A.D. 150; Scheidell v. Llewellyn Realty Co., 177 N.Y.S. 529; Schanz v. Sotscheck, 167 A.D. 202. Rule 113 does not include foreclosure actions, but plaintiff has also asked for judgment on the pleadings under rule 112, and judgment will be ordered accordingly. The matter will be referred to A. Parker Nevin, as referee, to compute the amount due.
Ordered accordingly.