General

Paul Gusmorino et al., Appellants, v. Edith R. Hudson, Respondent, et al., Defendants

3 A.D.2d 762·New York Supreme Court, Appellate Division·1957·NY

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Opinion

Paul Gusmorino et al., Appellants, v. Edith R. Hudson, Respondent, et al., Defendants. [MAJORITY] In an action to foreclose a mortgage on real property, the appeal is from so much of a resettled order as denied appellants' motion to strike out the answer and for summary judgment. Order insofar as appealed from affirmed, without costs. Under the facts presented by this record, the prior judgment having been vacated, the doctrine of res judicata does not preclude respondent from asserting the defense of usury. Whether or not appellants had knowledge of the usurious scheme or plan alleged in the answer presents .a question of fact which should be tried. Wenzel, Acting P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.