41 Barb. 359 | N.Y. Sup. Ct. | 1864
The mortgage which this action is brought to foreclose, bears date DTovember 10, 1852, and was given by the defendants, Elias Johnson, David B. Cox and Joseph W. Fuller, to John F. Delaplaine, to secure the payment of the sum of $35,000, with the interest. The execu
The defense set up in the answers is usury; a corrupt, usurious and unlawful agreement which vitiates and discharges the contract for the payment of the money mentioned in the bond and mortgage, so that it cannot be enforced against the mortgagors or those claiming the premises mortgaged, under them. It is not claimed in the answers that the sum of $4355.55, which was paid to William Y. Brady when he took the assignment of the bond and mortgage, is a payment thereon; or that it is a set-off or counter-claim which the defendants have the light to have deducted from the amount due for principal and interest upon the bond and mortgage. The answer claims nothing of the kind. It claims and insists that this sum of $4355.55 was paid to Brady as a premium or bonus for the loan, in addition to the lawful interest to accrue thereon, and that owing to the corrupt and unlawful nature of the contract of loan, nothing whatever is due and payable upon the bond and mortgage. The proof upon the trial also shows that the sum above referred to was given to Brady not as a payment upon the bond and mortgage, but for a very different purpose, to which I shall refer hereafter. I make this explicit statement at the outset, so that it may be seen that a determination of the question of usury disposes of the action altogether.
1 Usury can only be predicated of a contract. It is an offense or forfeiture created by the statute which declares what shall be the rate of interest for the loan of forbearance of money, goods or things in action, and then proceeds to declare, that “all bonds, bills, notes, assurances, conveyances, and all other contraéis or securities whatever, (except bot
The judgment of the special term should be affirmed with costs.
Brown, Scrugham and Lott, Justices.]