Luddington v. Kirk , 37 N.Y.S. 1141 ( 1896 )

Conlan, J.

Appeal from a judgment entered upon a verdict directed by the court at Trial Term and from an order denying a motion for a new trial.

The action is brought on a promissory note made by a domestic corporation and indorsed by the defendants and delivered to the plaintiff before maturity. ' The defense is usury. Briefly, the facts are as follows:

One George Breck was a member of the defendants’ firm of H. B. Kirk & Company and brought to the plaintiff’s husband for discount a note made by the. corporation of E. D. Braekeleer & Company to the order of H. B. Kirk & Company and indorsed by them (the note was for $1,000) and received from the plaintiff’s husband as her agent therefor the sum of $937.78. When this note became due, Breck procured another note for like amount by the same maker, indorsed by the defendants’ firm, and delivered the same to the plaintiff’s agent in renewal of the first note, and at the same time paid $20 discount and $15 for commissions on the transaction.

The proceeds of the first note were deposited in bank to the credit of the defendants’ firm.'

George Breck was .sued as one of the defendants but did not answer. He was produced as a witness, upon the trial, for the defendants and identified the defendants’ articles of copartnership, which were put in evidence for the purpose of showing that neither partner had the right to sign, indorse or use the- firm name, except for the film’s business, but there was no proof that knowledge of this circumstance was brought home to the plaintiff, nor yet to her agent, and the witness testifies upon the cross-examination that the proceeds of the note were deposited in the Second Rational Bank to the credit of H. B. Kirk & Company.

. It went right into the funds of the firm in the bank. There was no evidence whatever that the defendants did not get the proceeds of the nóte and no imputing knowledge to the plaintiff that there was any usury' in the transaction or disputing the ownership of the note for value by transfer before maturity. Even if the plaintiff knew of the usurious nature of the transaction as alleged by the defendants, still the note was the obligation of a creature pro1kibited by statute from pleading usury, and that defense would not be available to the defendants as indorsers.

For these reasons, we think the judgment appealed from should be affirmed.

Judgment affirmed, with costs.

O’Dwyee, J., concurs.

Judgment affirmed, with costs.