Opinion
May, 1931.
Order reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The order denied a motion for judgment on the pleadings pursuant to section 476 of the Civil Practice Act and rule 112 of the Rules of Civil Practice. The action is in replevin. The respondent concedes that the only question is whether the charging and acceptance of more than six per cent for extending a payment due under a conditional contract of sale constitutes usury. The transaction here involved is a sale of merchandise on credit, to which the usury laws have no application. The relation of lender and borrower is not involved. ( Orvis v. Curtiss, 157 N.Y. 657; Van Dyk v. Dujardin, 213 App. Div. 791; Dry Dock Bank v. American Life Ins. Trust Co., 3 N.Y. 344; Title Guaranty Surety Co. v. Klein, 178 Fed. 689.) Lazansky, P.J., Kapper, Hagarty, Carswell and Davis, JJ., concur.