21 Barb. 181 | N.Y. Sup. Ct. | 1855
Upon the facts found by the judge at special term, was this transaction usurious per se 7 It was held to be so by the learned justice before whom the cause was tried, although the fact is distinctly found, that the plaintiff had no knowledge of the charge of $25 made by her agent, and never-received any portion of it. As the plaintiff never knew of the charge, and it was not made for her benefit, but for the exclusive benefit of her agent, she cannot be held to have sanctioned it by bringing the action to collect the note. The decision at special term goes further, I think, than any court has yet gone in this direction. At least I have been able to find no reported case which goes this length, and upon principle I do not see how it can be sustained. It was held by Lord Tenterden, in Meagoe. v. Simmons, (1 Moody & Malkin, 121,) that where the lender stipulates with the borrower that the latter shall pay a commission to the lender’s agent, it is usurious, although the lender himself retains nothing but the legal discount. And this is the rule laid down in Chitty. (Chitty on Bills, 105, 8th Am. from 8th Lon. ed.) To this doctrine I fully subscribe. In such a case, payment to the agent at the
. My conclusions are, that the note is a valid note, and never imbibed any taint of usury; and that the action is well brought. The judgment of the special term must therefore be reversed, and a new trial ordered, with costs to abide the event.
Selden, J., concurred.
Welles, J., dissented.
New trial granted.
Selden, Welles and Johnson, Justices.]