Jenkins v. Moyse

Judgment affirmed, with costs. The plaintiff, not having been a party to the foreclosure action and having been denied the right to intervene in that action, is not barred by the judgment therein from maintaining this action. We are of opinion that the John F. Jenkins Company, Inc., was incorporated, took title to plaintiff’s premises and executed the bond and mortgage at the instance- of the mortgagee for the express and sole purpose of enabling the mortgagee to evade the law against usury. We are also of opinion that the findings of fact are sustained by the proofs, that the trial court properly found that the loan was usurious and the bond and mortgage and all proceedings thereunder null and void. Young, Kapper, Carswell and Tompkins, JJ., concur; Lazansky, P. J., dissents upon the ground that the judgment of foreclosure against the corporation is a binding adjudication against this plaintiff.