48 N.Y.S. 301 | N.Y. App. Div. | 1897
To this action, which was brought by the payee against the makers of a promissory note, the only defense set up in the joint answer of the defendants was want of consideration. Upon the trial, testimony was given on the part of the defendants tending to show that the note was made and delivered to the payee for his accommodation only. In rebuttal, the plaintiff introduced evidence of a consideration having been been given. It affected the defendants differently. It was conceded by the plaintiff that, at the time the note was made,, the defendant Honeyman was not indebted to him; but he testified that,, at that time, the defendant Gildersleeve owed him a large amount of money and that he forbore enforcing his claim by suit j in- consideration whereof, and also of an assignment made by him to various parties, of whom the defendant Honeyman was one, of an interest in a certain contract, the defendant Honeyman signed the note in suit. That testimony of the plaintiff was contradicted by the defendant Honeyman,. and the issue arising on it was left to the
But a question was mooted on the trial, the consideration of which was taken from the jury, and the important inquiry on this appeal is as - to the. correctness of the action of the court relating to that question. It came into evidence that the consideration for the McNamee note consisted of certain separate amounts of money loaned or advanced at different times by the plaintiff to McNamee and Huested, and there were also facts testified to tending to show that some of the items were loans upon usurious interest. The evidence as to usury was, except as to one item, very vague and general, but there was possibly enough to allow the case to go to the jury on the question of the unlawful character of the note sued upon, had that question been properly before the court. The learnéd judge presiding at the trial instructed the jury to disregard everything relating to the subject of usury, assigning as a reason that while it might have been available to
But the learned judge was right in his.instruction to the jury, that the defense was not available to the defendants, because it was not pleaded. The action was upon an instrument which, if there were any usury at all in the whole series of precedent transactions which eventuated in the giving of that instrument, was tainted by that usury. That the note in suit was given in substitution for or renewal of the McHamee note, guaranteed by the defendant Gildersleeve, cannot be doubted on the evidence. The plaintiff’s statement that it was so given was not contradicted by the defendant Gildersleeve, when he was recalled after- the plaintiff’s examination as a witness, and it distinctly appears by the testimony of Gildersleeve’s bookkeeper that, at the time the note in suit was given, and was drawn or filled up by the bookkeeper for signature by the defendants, the plaintiff produced the McHamee note, and from that note the .amount of the new obligation was taken. If there were usury in any of the items entering into the contract with McHamee and Huested and into the promissory note-signed by McHamee and guaranteed by Gildersleeve, the contamination was carried into the note in suit. “ So long as the original element of usury remains and until it has been thoroughly purged by the deliberate act of the parties, the taint of usury attaches to all subsequent contracts and securities substituted for or given in renewal of the original debt, no matter how many times removed, and tlie debtor has the same right of defending against the last substitute or renewal as if it
■' Van Brunt, P. J., Barrett^ Bumsey and Williams, JJ., concurred.
Judgment affirmed, with costs.