From Casetext: Smarter Legal Research

Matter of Plotkin

Appellate Division of the Supreme Court of New York, First Department
May 25, 1967
28 A.D.2d 528 (N.Y. App. Div. 1967)

Opinion

May 25, 1967


Decree of Surrogate's Court dismissing appellant's objection to the executrix' account, unanimously reversed, on the law and the facts, and proceeding remanded to the Surrogate to determine the amount due to objectant, with $50 costs and disbursements to appellant payable out of the estate. The objection to the executrix' accounting is based on her failure to allow a claim of objectant on a promissory note. The objectant is the executor of Frank Plotkin, who was a cousin of the respondent's testator, George Plotkin. It appears that George was lawyer who handled financial matters for various members of a large family. Among them was Frank Plotkin, an elderly man with somewhat impaired faculties. The proof shows that Frank from time to time delivered substantial sums to George. Also, from time to time George gave his note to Frank. In addition, George remitted sums to Frank. The proof also shows that there was mention of transactions with third persons but whether these represented investments or loans made on behalf of either George or Frank is left entirely without explanation. The Surrogate concluded that the note was usurious. The note itself makes no provision for interest. The burden of proving that a transaction is usurious is on the person who asserts it ( White v. Benjamin, 138 N.Y. 623). All that appears in this voluminous record to support the defense is a series of checks dated one month apart from George to Frank, most of which antedate the giving of the note, and a notation in a scratch memorandum made by Frank at some undesignated time of the figure 1+1/2%. From this it is concluded that George was paying 1-1/2% interest monthly. One of the difficulties with this proof is that the amount of the checks is not 1+1/2% of the face of the note. The proof does not meet the burden of establishing usury. Objectant concedes that the checks given subsequent to the note were in part payment. It also appears that objectant has realized on certain funds claimed to be security. These sums should be determined and the resulting credit on the claim established, and for that purpose the matter is remanded to the Surrogate.

Concur — Botein, P.J., Eager, Steuer, Rabin and McGivern, JJ.


Summaries of

Matter of Plotkin

Appellate Division of the Supreme Court of New York, First Department
May 25, 1967
28 A.D.2d 528 (N.Y. App. Div. 1967)
Case details for

Matter of Plotkin

Case Details

Full title:In the Matter of the Accounting of CLARA C. PLOTKIN, as Executrix of…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 25, 1967

Citations

28 A.D.2d 528 (N.Y. App. Div. 1967)