Opinion
July 14, 1958
In an action by an assignee to foreclose a purchase-money mortgage on real property, the appeal is from so much of an order as denied appellant's motion for summary judgment striking out respondent's answer (Rules Civ. Prac., rule 113). The defense is usury and appellant relies upon an estoppel certificate executed by respondent. The answering affidavit, in addition to allegations showing that a usurious bonus was exacted by the mortgagee when the mortgage was executed, sets forth facts tending to establish that the respondent did not know the nature or purpose of the certificate, and that he was induced to sign it by reason of false representations made to him by an attorney, who had represented him and the mortgagee when the mortgage was given and who apparently was acting as attorney for the mortgagee on the occasion when the estoppel certificate was executed and delivered. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. No opinion. Nolan, P.J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.