42 N.Y.S. 1098 | N.Y. App. Div. | 1897
There was evidence in this case, of a circumstantial nature, to-warrant the findings of the learned trial judge. This evidence went-far beyond mere-surmise or conjecture. The inferences therefrom were certain, and they -pointed clearly and directly to the usury charged, We entirely agree with the view of the law presented upon the appellant’s behalf. It is not sufficient for the plaintiff to show that the loan was made by the agent of the lender, and that this agent exacted and received a bonus over and above the legal interest. It is undoubtedly the rule that the plaintiff must also show ’that the act of the agent was authorized by the principal, or that betook the bonus with the lender’s'knowledge and assent, so that the latter, at least by- acquiescence, became a party to .the usurious transaction.
But here there was more than an ordinary agency. The parties-were clearly acting in concert to evade the usury law. They were father and daughter. They lived together. The proceeds of the-usury went to support them both. There was no pretense of compensation to the father for his services. The daughter knew that he was exacting compensation from the lender, or else that he was. acting gratuitously. It seems that she had a small capital deposited in bank in her own name. Upon that the business was transacted. It was. what is known as a chattel mortgage business.. The father did the business and the daughter signed the checks. That, in fact, was all she did. The transaction in question was not an isolated one... It was simply an incident of the general business in which the parties were engaged — the business of lending money at usurious-
All that took place betAveen them when the loan was made was this, according to her testimony: “ When my father talked to me about the matter he said he had an application for a loan that he thought Avas a very good one; that Mr. Kinney found everything correct, and I -then gave him the check for the amount. * * * Q. You say he submitted the loan to you and you approved it? A. He submitted it to me as being satisfactory and as being Aery good, and I gave him the money.” He says : “ Q. Is it a fact that you and your daughter live together t A. I~es, sir. Q. Did you not support your daughter at this time out of the moneys that you
• The documents to which Eosswog secured the plaintiff’s signature .cannot avail as against the real facts of the case It.appears that at some time the plaintiff signed' two papers — one an instrument acknowledging that she had constituted Eosswog her agent to procure the loan; that she had agreed to pay him fifty dollars for his .servicés, and that he had no interest whatsoever in the money to be procured by him ; the other, an affidavit verifying all the statements ■made in the instrument referred to. There seems to be some con■fusion about the date when these papers were signed. Eosswog says they were signed at the same time as the note and chattel mortgage. • The plaintiff says she never knew that she had signed -any papers save the note and chattel mortgage. The notary public, Whose name is attached to -the affidavit, strangely enough Was not .called as a witness. And the affidavit purports to. have been verified oh the 21st day of April, 1895. Either this is a misprint or the defendant, in some undisclosed manner, secured the plaintiff’s signature thereto two years after the loan was made. Assuming that the date “1895” is a misprint, and that “1893 ” was intended, it is still singular, if these' instruments were fairly obtained,' that the defendant failed to call the notary as a witness. The truth is that these documents really strengthened the plaintiff’s case, They •are not such documents as any innocent broker, dealing honestly; would present to a borrower. They are elaborate and specious, carefully drafted, and evidently printed for general use with re'cur-■I'ing victims. The object was plainly to cover up the real transaction and to estop the victim from subsequently asserting the usury.
The judgment should be affirmed, with costs.
Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.
Judgment affirmed, with costs.