Opinion
December, 1935.
Judgment in a foreclosure action reversed on the law and the facts and a new trial granted, costs to abide the event. Findings of fact numbered ninth, eleventh and twelfth are reversed and the first sentence of paragraph sixth is also reversed. We are of opinion that the findings of the trial court that the mortgage in question was free from the taint of usury are against the weight of the evidence in so far as the payment of $150 at the time of the extension of the mortgage is concerned. If it be determined that an usurious agreement was made for the extension of the mortgage, the amount exacted will be credited as payment on the principal. ( Real Estate Trust Company v. Keech, 69 N.Y. 248.) Lazansky, P.J., Young, Hagarty, Tompkins and Davis, JJ., concur.