
    Vos a B. Shute, Appellant, v. Herman Stattman and Tillie Stattman, Respondents, and Others, Defendants.—
   In an action to foreclose a mortgage, in which defendants Stattman pleaded usury, judgment modified by eliminating the provision therein which permits defendant Herman Stattman to recover from the plaintiff $247.50, with interest from April 1, 1934, and as so modified the judgment is unanimously affirmed, without costs. This sum represents interest in excess of the legal rate which defendants Stattman paid by reason of an independent usurious agreement that had no relation to the original transaction. There is

no basis for an affirmative judgment in defendant’s favor, because they failed to plead a counterclaim for the recovery of these usurious payments and, in any event, an action therefor is required to be commenced within one year after the payment. (General Business Law, § 381.) Conclusion of law No. 8 is reversed. Appeal from findings of fact, conclusions of law and decision dismissed. No appeal lies therefrom. Present — Lazansky, P. J., Carswell, Davis, Johnston and Taylor, JJ.  