(227 N.Y.S.) The plaintiff brought this action as the trustee in bankruptcy of one Isaac F. Roe, to cancel and discharge a certain mortgage for $1,325,000, executed by the defendant 415 Central Park West Corporation to the two defendants who are making this motion, as trustees for the holders of the bonds which were issued and sold under the mortgage. The amended complaint also asks for an accounting for all moneys advanced on the security of the mortgage and for determining how much was advanced. Further relief is asked against the other defendants in the action, but the foregoing demands are the only ones which concern the defendants Charles C. Moore and Chatham Phenix National Bank & Trust Company, the mortgagees in the above-mentioned mortgage. Prior to June 15, 1925, plaintiff's bankrupt was the owner of the equity in the property on the northwest corner of 101st street and Central Park West, New York City. Wishing to erect an apartment house on that site, he applied to the defendant American Bond & Mortgage Company, Inc., for a mortgage loan. After negotiations, the mortgage company agreed to make a building loan on the property in the sum of $1,325,000, to be secured by a mortgage at 62 per cent. The 415 Central Park West Corporation was then organized, of which Roe was the president and sole stockholder, and the premises were conveyed to it. Thereupon that corporation entered into a brokerage agreement with the mortgage company, covering the usual details of the loan, such as the compensation of the brokers and the payment of attorneys' and engineers' fees in connection with the erection of the apartment house. On September 15, 1925, the 415 Central Park West Corporation executed. and delivered to the defendants Charles C. Moore and Chatham Phenix National Bank & Trust Company, a mortgage in the sum of $1,325,000, covering the premises and drawing interest at the rate of 62 per cent. per annum. At the time of the delivery of the mortgage, the 415 Central Park West Corporation also executed the bonds which are provided for in the mortgage, for the same amount, and delivered them to the American Bond & Mortgage Company, Inc., for sale. These bonds have been sold to various persons, who now hold them. Bertram L. Kraus, of New York City (William Burr De Lacy, of New York City, of counsel), for plaintiff. Ralph C. Taylor, of New York City, for defendants Moore and Chatham Phenix National Bank & Trust Co. FRANKENTHALER, J. [1,2] The first cause of action contains no allegations that the mortgage company did anything which it had no legal right to do. The agreement between it and 415 Central Park West Corporation is not made part of the pleading, although it is referred to therein. In the absence of any allegation to that effect, it cannot be assumed that any of its acts, now complained of, violated or were unauthorized by the agreement. Paragraph nineteenth alleges that the mortgage company required Roe to transfer his stock in the 415 Central Park West Corporation to it "as a 227 N.Y.S.-23 condition of excusing such defaults," referring to Roe's failure to fulfill the agreement between the parties. There is no averment that Roe was not actually in default at the time, and under the circumstances there is nothing to show that the mortgage company was not lawfully entitled to require additional security as a condition of continuing the loan and refraining from foreclosing the mortgage. [3-5] Similar observations may be made with reference to other allegations of the first cause of action. Assuming that the claim that moneys in excess of the fee agreed upon were paid to persons engaged in building the structure may be valid and meritorious as to some of the defendants, it certainly cannot justify the reconveyance of the property as prayed for in paragraph twenty-ninth. The first cause of action therefore fails to affect the moving defendants. They are in no way linked up with the excessive payments by any of the allegations of the first cause of action and no case for a reconveyance of the realty is made out against them or any of the defendants. Allegations of conspiracy, etc., on the part of the mortgage company are meaningless in the absence of any showing that the purpose of the conspiracy was wrongful. The allegations of paragraph twentysecond, to the effect that the stock pledged by Roe was sold at public auction, do not avail plaintiff, since there is no averment that this was done in violation of the rights of Roe or any one else. Moreover, the moving defendants are in no wise concerned with the reconveyance of the stock which plaintiff now seeks. As to them, the first cause of action is clearly insufficient. [6] In the second cause of action plaintiff charges that the transaction was usurious, although the loan was nominally made to the 415 Central Park West Corporation. The moving defendants argue that there can be no usury where a corporation is the borrower, and that the veil of the corporate entity cannot be pierced. In this they appear to be in error. See editorial, N. Y. L. J., December 19, 1927, entitled "Usury-Use of Corporation as a Cloak for Law Evasion," and Wormser on "The Disregard of the Corporate Fiction and Allied Corporate Problems," p. 84. However, the second cause of action is insufficient for other reasons. A trustee in bankruptcy cannot rescind a usurious transaction and recover the securities pledged thereunder without paying or offering to pay the lender the amount borrowed. Rice v. Schneck, 189 App. Div. 877, 179 N. Y. S. 335, affirmed without opinion 228 N. Y. 561, 127 N. E. 920. [7] The offer to pay contained in paragraph forty-second of the complaint is conditional and not absolute. Such a tender is invalid. (227 N.Y.S.) and of no effect. Noyes v. Wyckoff, 114 N. Y. 204, 207, 21 N. E. 158; Gould v. Cayuga County National Bank, 86 N. Y. 75, 84. Moreover, the condition of the offer, viz., that the title to the realty be transferred to plaintiff, is unwarranted under the allegations of the complaint. For aught that appears, Roe's stock was properly sold at public sale, in which event he and his trustee in bankruptcy would be divested of any rights in the corporation which owned the equity in the property. The second cause of action is therefore insufficient in law. The third cause of action, dealing with the improper construction of the building, seeks no relief other than money damages. It contains no allegation affecting the moving defendants, and as to them is obviously insufficient. The fourth cause of action seeks an accounting from the moving defendants as well as from the mortgage company. There is no allegation, however, that any moneys of which an accounting is desired were ever received or disbursed by the moving defendants, and, indeed, they are not even mentioned in the fourth cause of action. It manifestly fails to make out any case against them. The motion to dismiss is accordingly granted. Supreme Court, Appellate Term, First Department. February 7, 1924. 1. Courts 189(15)—Statutory requirement that successful party's attorney enter judgment held merely directory, and judgment entered by clerk was valid (Municipal Court Code, § 125, as amended by Laws 1923, c. 769). Since Municipal Court Code, § 125, as amended by Laws 1923, c. 769, providing that all judgments shall be prepared by clerk under direction of the court, except where successful party has appeared by attorney, does not expressly prohibit clerk from preparing and entering judgment, it is merely directory, and not mandatory, and judgment entered by clerk was valid, though both parties were represented by attorneys. 2. Courts 190(3)—Defendant held not deprived of benefit of appeal from Municipal Court judgment entered by clerk because plaintiff subsequently entered another judgment (Municipal Court Code, § 125, as amended by Laws 1923, c. 769). Where defendant filed notice of appeal nine days after Municipal Court judgment for plaintiff was rendered by court, entered by clerk, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes and duly served on plaintiff's attorney, fact that plaintiff prepared and entered another judgment, without notice to defendant, more than three weeks after service of the notice, and after time to appeal from judgment entered by clerk had expired, did not deprive defendant of benefit of appeal from the first judgment, under Municipal Court Code, § 125, as amended by Laws 1923, c. 769, though both parties were represented by attorneys. Action by Edith Godwin against Henry Hauer. Judgment for plaintiff, and defendant appeals. On plaintiff's motion to dismiss appeal. Motion denied. Argued October term, 1923, before BIJUR, MULLAN, and LYDON, JJ. Louis Rosenberg, of New York City, for appellant. Julius Blumofe, of New York City, for respondent. PER CURIAM. Motion to dismiss appeal. In this action, in which each side was represented by an attorney, plaintiff obtained judgment against defendant October 23, 1923, after trial by jury, and the clerk thereupon, on the same day, entered judgment on the verdict for the plaintiff. Nine days thereafter defendant filed a notice of appeal from the judgment, and duly served it on the plaintiff's attorney. More than three weeks after the service of the notice, and after the time to appeal from the judgment entered by the clerk had expired, plaintiff's attorney, without notice to defendant, prepared a judgment and caused it to be entered. No appeal having been taken from that judgment within the statutory 20 days, plaintiff moves to dismiss defendant's appeal. [1] The complication arises out of the 1923 amendment to section 125 of the Municipal Court Code, which was operative at the time of the trial, providing that “all judgments shall be prepared by the clerk of the court under direction of the court, except where the party in whose favor such judgment is rendered has appeared by an attorney." Laws 1923, c. 769. It is to be inferred from the amendment that, where the successful party appears by an attorney, the judgment is to be prepared by the attorney; but the clerk is not expressly prohibited in such a case from preparing and entering the judgment, and it may well be argued that the amendment is directory merely and not mandatory. Apparently the successful party may take as much time as he pleases to prepare and enter the judgment, and, as the unsuccessful litigant is not entitled to notice, he must, if he intends to appeal, (227 N.Y.S.) continuously keep in touch with the clerk's office, so as to find out when the time within which to appeal begins to run against him. [2] Here the defendant appealed from a judgment actually entered against him, and the fact that the plaintiff subsequently entered another judgment does not deprive the defendant of the benefit of the appeal from the first judgment. Motion denied. (131 Misc. Rep. 473) MIDTOWN PLOTTAGE CORPORATION v. SULLIVAN. Supreme Court, Appellate Term, First Department. February 16, 1928. 1. Courts 189(15)-On refusal of successful party's attorney to prepare judgment, it may be prepared by opposing attorney or clerk under court's direction (Municipal Court Code, § 125, as amended by Laws 1923, c. 769). Under Municipal Court Code, § 125, as amended by Laws 1923, c. 769, where attorney for successful party refuses to prepare the judgment, the opposing attorney or the clerk under direction of the court may prepare it. 2. Courts 190 (9)—Appeals must be dismissed, where orders are not appealable as of course and no permission to appeal appears. Where none of orders appealed from are appealable as of course, and no permission to appeal appears in the papers, appeals must be dismissed. Appeal from Municipal Court, Borough of Manhattan, Third Dis trict. Action by the Midtown Plottage Corporation against James Sullivan. From orders in favor of defendant, plaintiff appeals. Appeals dismissed. Argued December term, 1927, before DELEHANTY, LYDON, and LEVY, JJ. Charles J. Herson, of New York City, for appellant. PER CURIAM. [1] Manifestly, in line with our decision in the Godwin v. Hauer Case, 227 N. Y. S. 355, where under the 1923 amendment (Laws 1923, c. 769) to section 125 of the Municipal Court Code, the attorney for the successful party refuses to prepare For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |