Opinion
October 24, 1955.
In an action to recover a fee paid to respondent to procure its commitment to lend money, the appeal is from an order insofar as it denies appellant's motion to strike out respondent's answer and for summary judgment or to strike out certain denials and affirmative defenses in said answer. The third affirmative defense, which was not struck out in the order appealed from, states that the action is premature in view of the fact that the time in which the loan might have been consummated extended to December 15, 1954, whereas this action was commenced on October 4, 1954. Order modified by striking from the fourth ordering paragraph thereof the words "second defense" and by substituting therefor the words "second and third defenses." As so modified, order affirmed, with $10 costs and disbursements to respondent. The time within which the loan might have been consummated does not affect the time of commencement of this action to recover the fee as one which was a penalty and one which was given and accepted under a mutual mistake. If the $15,000 was in fact a penalty, it was recoverable at any time after the payment was made. Nolan, P.J., Wenzel, Schmidt, Beldock and Murphy, JJ., concur.