
    SCHWEIZER et al. v. HICKOK et al.
    (Supreme Court, Appellate Division, Second Department.
    April 11, 1913.)
    Usuby (§ 56*)—Acts Constituting.
    The defense of usury interposed in a suit to foreclose a mortgage is not available, where the attorney representing the mortgagee deducted $400 from the $2,000 loaned, but no part thereof was returned to the mortgagee.
    [Ed. Note.—For other cases, see Usury, Cent. Dig. §§ 122-127; Dec. Dig. § 56.]
    Appeal from Special Term, Westchester County.
    Action by William Schweizer and another against William P. Hickolc and others. From a judgment for plaintiffs, defendant named appeals. Affirmed.
    See, also, 152 App. Div. 891, 136 N. Y. Supp. 1147.
    Argued before BURR, THOMAS, CARR, RICH, and STAPLE-TON, JJ.
    Isaac N. Miller, of New York City, for appellant.
    Edwin G. Davis, of New York City, for respondents.
    
      
       For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   RICH, J.

This appeal is from a judgment in favor of the plaim tiffs in an action brought to foreclose a mortgage given by defendant William P. Hiclcok to plaintiffs to secure the payment of $2,000.

The defense of usury is interposed, and while the record discloses that the attorney who represented the plaintiffs took advantage of defendant’s necessity to the extent of deducting $400 from the $2,000 loaned, there is no evidence that any part of this sum was returned to the mortgagees; in fact, it appears that none was returned. Under the circumstances, we must affirm the judgment; but it will.be without costs.

Judgment affirmed, without costs. All concur.  