Opinion
November 23, 1942.
In an action to foreclose a mortgage which, together with a bond, had been executed by defendants in 1928 to plaintiff's assignor, an investment company organized under article VII of the Banking Law of 1892 (L. 1892, ch. 689), the defendants interposed a counterclaim requesting that the bond and mortgage be declared null and void for usury exacted by plaintiff's assignor. Plaintiff replied that the limited penalties provided by section 114 Banking of the Banking Law (Cons. Laws, ch. 2; L. 1922, ch. 623) in force at the time of the transaction in 1928 applied, rather than the provisions of General Business Law (Cons. Laws, ch. 20), section 373. Order denying defendants' motion, made pursuant to rules 103 and 111 of the Rules of Civil Practice to strike out the separate defense contained in the reply on the ground that it is sham and frivolous and insufficient in law, in so far as appealed from, affirmed, with ten dollars costs and disbursements. Defendants' contention that the 1922 amendment of the Banking Law, because it specifically referred to "every investment company organized under article seven of chapter three hundred and sixty-nine of the laws of nineteen hundred and fourteen," as last amended by chapter 227 of the Laws of 1917, did not apply to investment companies organized under the provisions of the Banking Law as it existed prior to 1914, is untenable for the reason that chapter 689 of the Laws of 1892 was repealed by and re-enacted in chapter 369 of the Laws of 1914. (See General Construction Law, § 80; Cons. Laws, ch. 22.) — Lazansky, P.J., Carswell, Johnston, Taylor and Close, JJ., concur.