
    Ali Baker, Appellant, v. Fred A. Smythe, Doing Business under the Name of Independent Credit Company, Respondent.
   The complaint contains three causes of action. The first and second causes of action are in equity to cancel and set aside certain notes, bonds and mortgages, and for an injunction to restrain the enforcement thereof on the ground that they are tainted with usury. The third cause of action is at law to recover the sum of $202.11, pursuant to section 381 of the G-eneral Business Law, for excess interest paid on a mortgage which was satisfied after condemnation proceedings had been instituted by the City of Rew York to acquire title of the real estate involved. Defendant moved for summary judgment pursuant to rules 113 and 114 of the Rules of Civil Practice and plaintiff made a cross motion for similar relief. Defendant’s motion was granted and plaintiff’s motion denied. Plaintiff appeals from the order and from the judgment entered thereon. Order modified on the law and the facts by striking out the first and second ordering paragraphs and by inserting in place thereof a provision denying defendant’s motion for summary judgment. As thus modified, the order is affirmed, without costs, and the judgment entered thereon is vacated, without costs. The record presents issues of fact which cannot be resolved on a motion for summary judgment. Lewis, P. J., Hagarty, Johnston, Adel and Rolan, JJ., concur. [See post, p. 842.]  