
    Felix Kalmayer, Appellant, v. Martha Twietmayer and Another, Respondents, Impleaded with Sam Bernitz, Doing Business as Arrow Heating Company, Defendant.
    Supreme Court, Appellate Term, First Department,
    November 14, 1935.
    
      
      Louis A. Schenfield, for the appellant.
    
      Jacob Silverstein, for the respondents.
   Per Curiam.

It was error for the trial court to deny plaintiff’s motion for an adjournment of the case on his plea of surprise when the defendant for the first time at the trial raised the issue of usury. However, the record establishes that plaintiff was not a holder in due course and for value and that the action was prematurely brought. The plaintiff, therefore, was not entitled to recover.

Judgment modified by providing that the dismissal of the complaint is without prejudice and as modified affirmed, with ten dollars costs to appellant.

All concur. Present — Lydon, Callahan and Shientag, JJ.  