
    Jane A. Lake, Respondent, v. John J. Nathans, Appellant.
    (Submitted September 29, 1876;
    decided October 6, 1876.)
    This action was brought to have the assignment of a bond and mortgage, executed by plaintiff to defendant as collateral security for a loan, given up and canceled on the ground of usury. Decided on the facts in the case.
    
      George W. Bandford for the appellant.
    
      W. I. Butler for the respondent.
   Allen, J.,

reads for affirmance of order granting a new trial, and for judgment absolute; Churoh, Ch. J., Miller and Earl, JJ., concur; Eolger, Rapallo and .Andrews, JJ., not voting.

Order affirmed and judgment accordingly.

On motion for reargument in above cause, it was claimed that judgment should have been modified and defendant allowed to retain the mortgage for a portion of the. debt secured, which it was alleged was not affected by the usury. Held, that if defendant was right in this claim, he should have gone back for a new trial, instead of appealing from the order granting it, as this court could only affirm or reverse the order granting a new trial; and, a new trial having been been properly granted, the order was necessarily affirmed, and judgment absolute given.

All concur.

Motion denied.  