Opinion
March 25, 1937.
In an action to impress a trust on real property, for an accounting, etc., and to recover a payment made on account of the principal sum of a usurious mortgage, the payment being smaller in amount than that legally allowed, order dismissing the complaint and the judgment entered thereon unanimously affirmed, with ten dollars costs and disbursements. As to the first cause of action, the facts alleged in the complaint do not constitute a cause of action for fraud or conspiracy by defendants, nor any cause of action. As to the second cause of action, the law does not permit a borrower to recover a voluntary payment made on a usurious mortgage, when the payment is in an amount smaller than that permitted by law. Section 372 Gen. Bus. of the General Business Law provides that an action to recover an excess payment may be brought within one year from the date of the payment; but the section is not applicable to this action, which seeks to recover, not an excess payment, but a payment of an amount smaller than that allowed by law. Lazansky, P.J., Johnston, Adel, Taylor and Close, JJ., concur.