Opinion
November 29, 1973
Order, Supreme Court, New York County entered on April 3, 1973, granting summary judgment, and judgment of said court entered thereon on August 30, 1973, unanimously reversed, on the law, judgment vacated, and summary judgment granted to defendant dismissing the complaint. Appellant shall recover of respondent $60 costs and disbursements of these appeals. Plaintiff sues upon a promissory note which on its face calls for interest at the rate of 18% per annum and is concededly usurious. Plaintiff, however, claims that as he is giving credit for all payments of interest in excess of the legal rate he is not barred from enforcing the obligation by virtue of section 5-519 Gen. Oblig. of the General Obligations Law. Credit for such payments or even their return does not have this effect. The note is still void. ( Bowery Sav. Bank v. Nirenstein, 269 N.Y. 259.) No change in the existing law was made in 1965 by the enactment of the section. It was taken verbatim from the then existing section 376 Gen. Bus. of the General Business Law. And when an interpretation was sought to give that section a meaning similar to that urged by the plaintiff here, the Court of Appeals rejected it with the statement that "The question is no longer open in this court." ( Bowery, supra, p. 263.) There being no issue we order what Special Term should have ordered and grant summary judgment to defendant.
Concur — Markewich, J.P., Kupferman, Steuer and Tilzer, JJ.