Opinion
June 28, 1949.
Appeal from Supreme Court, Albany County.
Present — Foster, P.J., Heffernan, Brewster, Deyo and Santry, JJ.
Plaintiff Kastor appeals from an order of the same Special Term which vacated an order of arrest issued against the defendant Frederick. There were allegations of fraud in the complaint (Civ. Prac. Act, § 826). The complaint at issue alleged joint venture agreements which defendant asserts to be usurious on their face because they guaranteed a minimum profit above and beyond the legal interest rate. The Special Term, distinguishing the case of Webster v. Roe ( 212 App. Div. 756, affd. 241 N.Y. 570), held the issue of usury could not be conclusively determined from the pleadings alone, and that there should be a trial. In vacating the order of arrest the Special Term pointed out that the allegations of fraud in the complaint had no relevancy to the cause of action alleged and the relief demanded in the complaint. Orders unanimously affirmed, without costs to either party.