REAL ESTATE TRUST COMPANY v. KEECH, 69 N.Y. 248 (1877)

THE REAL ESTATE TRUST COMPANY, Appellant and Respondent, v. THOMAS KEECH, Appellant and Respondent.

Court of Appeals of the State of New York.Argued March 28, 1877
Decided April 10, 1877

Henry E. Davies, for the plaintiff.

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Samuel Hand, for the defendant.

ANDREWS, J.

The bond and mortgage were valid in their inception, and the usurious agreement for the extension of the time of payment after the debt became due, did not affect their validity. The agreement for forbearance was void, but the original debt and the securities given for it remained in full force. (Blydenburgh on Usury, 97; Swartwout v. Payne, 19 J.R., 294; Merrills v Law, 9 Cow., 65; Rice v. Welling, 5 Wend., 595; Farmers’ and Mechanics’ Bank v. Joslyn, 37 N.Y., 353.)

The sum paid on the usurious agreement for forbearance will in equity be applied as a payment on the original debt, and the defendant was entitled to have the one thousand dollars paid by him on the unlawful agreement credited on the bond and mortgage. (Crane v. Hubbel, 7 Paige, 413; Judd v. Seaver,
8 id., 548.) The plaintiff on the trial waived any claim for a judgment for a deficiency against the defendant. The special term inadvertently included in the

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direction for judgment a direction that the defendant should be adjudged to be liable for any deficiency arising on the sale. The judgment entered directs the referee making the sale to specify in his report of sale the amount of such deficiency, but it does not in terms adjudge the defendant liable therefor. The plaintiff’s counsel on the argument consented that the judgment be modified by inserting a provision declaring that the defendant was not liable for any deficiency. The judgment is therefore modified in this respect, and as so modified affirmed.

There are cross appeals. The plaintiff has failed in his appeal, and the modification of the judgment in favor of the defendant could not, we think, upon the exception taken, have been demanded as a right.

Neither party should have costs of the appeal in this court.

All concur.

Judgment accordingly.