corporations not possessed by individuals or partnership.'
The leading case construing the law of New York on this subject is Jenkins v. Moyse, 1930, 254 N.Y. 319, 172 N.E. 521, 522, 74 A.L.R. 205. In that case the New York Court of Appeals held in substance that if a loan is made to a corporation at a rate of interest which could not lawfully be exacted from an individual, the loan and interest are valid and enforceable even though an individual -- because he owns all of the stock of the corporation, for instance -- indirectly receives the full benefit of the loan and even though the corporation was formed for the purpose of making the loan at the higher interest rate. The court stated, however, that:
'The test of whether this loan is usurious is whether it was in fact made to the plaintiff (an individual). Doubtless at times loans are made in fact to an individual though in form they are made to a corporation to hide the fact that the lender has exacted an illegal rate of interest from the real borrower.' (Emphasis supplied.)
The more recent case of Shapiro v. Weissman, 2d Dept. 1958, 7 A.D.2d 752, 181 N.Y.S.2d 43, 44 is also in point. This was an action to foreclose a mortgage on real property. The defense of usury had been raised, but the lower court granted summary judgment in favor of the plaintiff. The Supreme Court, Appellate Div., in reversing stated:
'The affidavits submitted on the motion present an issue of fact as to whether the loan was made to a corporation and guaranteed by appellants (individuals), in which event appellants would be precluded from pleading usury as a defense (General Business Law, § 374; Salvin v. Myles Realty Co., 227 N.Y. 51, 58, 124 N.E. 94, 96, 6 A.L.R. 581), or was in fact made to the appellants individually, though in form to the corporation to hide the fact that the respondent exacted an illegal rate of interest (cf. Jenkins v. Moyse, 254 N.Y. 319, 324, 172 N.E. 521, 522, 74 A.L.R. 205; Pink v. L. Kaplan, Inc., 252 App.Div. 490, 300 N.Y.S. 45).' (Emphasis supplied.)
There are certainly many allegations in the complaint which indicate that the loans in question were made to the corporation under circumstances which under the law of New York would preclude plaintiffs from raising the issue of usury. In determining whether summary judgment should be granted, however, we must read the complaint as a whole along with any affidavits submitted, to determine whether there exists a genuine issue of a material fact and whether the moving party is entitled to judgment as a matter of law, and we must resolve any doubt as to the existence of a genuine issue of fact against the moving party. See authorities previously cited.
We think that the allegations contained in the complaint and A. C. Moyer's supporting affidavit, although decidedly ambiguous in the light of other allegations of plaintiffs, are sufficient to create a doubt as to the existence of a genuine issue of fact on the material question as to whether the loans made by the defendant were made 'in fact to an individual (or partnership) though in form * * * to a corporation', so as to preclude entry of summary judgment.
It seems to be established by the pleadings that the partnership plaintiff does not have any title to the equipment involved and therefore is without standing to remove 'a cloud on the title of PAC Construction Company * * * who holds title and possession under and by virtue of a judicial sale * * *.' See: 74 C.J.S. Quieting Title § 16, p. 39. However, the plaintiff partnership has asserted title to certain real estate against which the judgments in favor of defendant appear to be liens, and plaintiff PAC has asserted title to the equipment involved pursuant to the judicial sale. Accordingly, we think both plaintiffs have at least prima facie standing to maintain this suit since the issue of usury may be raised by the borrower or those in legal privity with him. Edelman v. Cymberg, 261 App.Div. 698, 27 N.Y.S.2d 151; Yormark v. Waldman, 127 Misc. 748, 217 N.Y.S. 501.
An appropriate order will be entered.