98 N.Y.S. 231 | N.Y. App. Term. | 1906
This action is brought to recover usurious interest paid by plaintiff to the defendant, and at the close of the plaintiff’s case the complaint was dismissed, on the ground, as stated by the learned justice, that it appeared from certain exhibits in the case that the transactions were not loans, but purchases and assignments of salary to become due. But these exhibits did not conclude the plaintiff, and the circumstance that a contract is in writing does not exclude parol evidence that the written instrument is but a cloak for a usurious transaction. Knickerbocker Life v. Nelson, 78 N. Y. 149. Plaintiff testified to usurious exactions, which, undisputed, would support a judgment in his favor. The dismissal was improper.
Judgment reversed, and new trial granted, with costs to the appellant to abide the event.