
    (88 Hun, 101.)
    TILLITSON v. NYE et al.
    (Supreme Court, General Term, Fifth Department.
    June 21, 1895.)
    1. Usury—Compounding Interest.
    Compounding interest, and promising to pay it by the debtor, is valid if supported by a consideration.
    2. Same—Failure to Plead. •
    The objection that a mortgage is usurious is waived if not interposed in an. action to foreclose, and cannot afterwards be alleged as a ground for setting the mortgage aside.
    Appeal from special term, Monroe county.
    Action by George F. Tillitson against Alvin B. Nye and another . to set aside certain mortgages, on the ground that they were usurious. The complaint was dismissed on the opening of the case, and plaintiff appeals.
    Affirmed.
    Argued before LEWIS, BRADLEY, WARD, and WERNER, JJ.
    
      W. E. Edmonds, for appellant.
    W. A. Sutherland, for respondent.
   WAED, J.

The judgment in this case dismissed the complaint “on the opening,” with costs. What the opening was does not appear in the papers before us, but the counsel seemed to assume, upon the argument, that the complaint was dismissed because it did not allege a cause of action; and if it did not, the appellant’s counsel admitted the judgment should be sustained. In such a case, a motion to dismiss the complaint on the opening is proper. Sheridan v. Jackson, 72 N. Y. 170. The complaint set forth the giving of three mortgages. The second mortgage embraced certain items of interest that had a'ccrued on the first mortgage, with the interest computed on the accrued interest, or what is usually termed “compound interest.” Upon the execution of the second mortgage, the first mortgage was satisfied and discharged. The third mortgage contained, with other considerations, an amount of compound interest, which was computed on the accrued interest of the second mortgage. Upon the last two mortgages an action of foreclosure was instituted in the county court of Monroe county, in which the defendant was made a party. He did not defend the action, but attended the sale and forbade it.

Compounding the interest, and promising to pay it, by the borrower is valid and binding, if supported by a consideration. Young v. Hill, 67 N. Y. 162. The complaint shows a consideration for each mortgage. The ground of this action is that the mortgages are void for usury, on account of the compound interest inserted therein, and should be set aside, but the complaint does not allege any fact which would constitute usury or make the mortgages void. Besides, if the defense of usury existed td these mortgages, it should have been interposed in the action in which the mortgages were foreclosed. Bartholomew v. Yaw, 9 Paige, 165; Moses v. McDivitt, 2 Abb. N. C. 47; Thompson v. Berry, 3 Johns. Ch. 395, affirmed 17 Johns. 436; Vilas v. Jones, 1 N. Y. 274. If the foreclosure was defeated for usury in the mortgages, the judgment in that action would have amounted to the destruction of the mortgages, and been available as a defense whenever an attempt should be made to enforce them. The judgment should be affirmed, with costs. All concur.  