Lansing v. McKillup

1 Cow. 35 | N.Y. Sup. Ct. | 1823

J. McKillup, the principal debtor, stated in his affidavit, that the whole judgment, for $1015,29, except $115, was for usurious interest, charged by the plaintiff on'an old mortgara, and exhibited a particular statement, shewing what was V .1 il 5 really due thereon.

J. ./¥. Ely, contra, read an affidavit of the plaintiff, stating that $149,67 of the bond was due for a horse, sold to one of the defendants, and the residue for compound interest upon the mortgage, which the principal debtor had frequently promised to pay ; and which was cast by one of his sons, in his presence, and for which the defendant, D. McKillup, became security. Ely insisted, that this settlement, and contract to pay compound interest, was legally binding, and not usurious.^(a) '

But, without deciding this question, as the plaintiff's affi.~ davit was evasive, in not dirsctly and positively denyhig the usury, the Court granted the p~otion.^(b)

(a) Vid. The State of Connecticut v. Jackson, 1 John. Ch. Cas. 13; where this question is very fully considered, and the eases referred to.

(b) Vid. Everitt v. Knapp, 6 John. Rep. 331. Hewitt v. Fitch, 3 id. 250. In Fanning v. Dunham, 5 John. Ch. Cas. 122, the cases of practice, as to setting aside judgments, on usurious bonds and warrants, are collected. The Chancellor says, (page 137) “ From the proceedings of the Supreme Court, in Dunham v. Fanning, I am led to infer that the practice, on this subject, has changed since I left that Court; and that all summary interference at law, with judgments upon confession, charged with usury, is now denied.”