Lewis v. Barton

• Decision Date: 07 June 1887
• Citation: 12 N.E. 437,106 N.Y. 70
• Parties: LEWIS v. BARTON and others.
• Court: New York Court of Appeals Court of Appeals

106 N.Y. 70

12 N.E. 437

LEWIS

v.BARTON and others.¹

Court of Appeals of New York.

June 7, 1887.

Cross-appeals from general term supreme court.

A judgment entered on the decision of Mr. Justice RUMSEY, at the Monroe February equity term for 1883, sustaining the defense of usury to the bond and mortgage set forth in the complaint, having at general term been reversed as to defendant Charles Barton, and a new trial ordered as to him, and affirmed as to the other defendants, the said Barton appeals to this court from so much of said order as grants a new trial as to him, and plaintiff appeals from so much thereof and from the judgment entered thereon as affirms said judgment as to the other defendants.

J. E. Roe, for plaintiff.

Geo. Yeoman, for defendants.

ANDREWS, J.

We think the answer sets out with sufficient distinctness and accuracy the transaction constituting the alleged usury as proved on the part of the defendants, and that there was no essential variance. It alleges, in substance, that Briggs & Co., the makers of the note to which the mortgage in question was collateral, applied to the plaintiff for a loan of $5,000 for nine months, and that it was thereupon agreed between them that the plaintiff would loan to Briggs & Co. $3,000 for the time stated, and transfer to them three notes he then held against third parties, amounting in the aggreage to $1,500, upon receiving the note of Briggs & Co. for $5,000, payable in nine months, with interest, and that the transaction was consummated as proposed between the plaintiff and Briggs & Co., and the note of $5,000 given, indorsed by the defendant Barton and by John T. Briggs for the accommodation of the makers, and that the mortgage sought to be foreclosed was a further security to the plaintiff for the loan. The answer also alleges that the transaction was usurious, and in violation of the statute. There is some lack of precision and certainty in the averments in the answer, but the plaintiff could not have been misled in respect to the defense intended, or as to the circumstances relied upon to support it. The usual rule for the construction of pleadings applied as well to an answer of usury as to one setting up any other defense. National Bank of Auburn v. Lewis, 75 N. Y. 516.

The claim that there was no sufficient denial in the answer of the averments in the complaint, if well founded, furnishes no ground of error. The defense of usury was not inconsistent with the admission of the averments in the complaint; and, as the case turned wholly upon that defense, it is unimportant that the defendants may have admitted what but for the existence of the usury would have constituted a cause of action. On the merits the evidence was conflicting. The plaintiff was sworn as a witness in his own behalf. He admitted that he advanced only $3,000 in money, and $1,500 in notes, for the...