133 N.Y.S. 944 | N.Y. App. Term. | 1912
This action was brought to recover penalties from the 'defendant, a private banker, under section 74, chapter 10, Laws of 1909, being chapter 2 of the Consolidated Laws. The complaint alleged as one cause of action twenty-one separate and distinct violations of’ the act and asked judgment for twice the amount of illegal interest paid, aggregating $157.50.
The court dismissed the complaint on the ground that it was “ an action for cumulative penalties.”
Section 74 of the Banking Law provides that its true intent and meaning is to place and continue State banks and private bankers on an equality with national banks. In an action against a national bank to recover usurious interest “ the party entitled to maintain the action is entitled to recover twice the amount he had paid for usury within two years prior to the commencement of the action, whether the amount was paid in one or several payments.” Hintermister v. First Nat. Bank, 64 N. Y. 213, 214-217; Farmers’ Nat. Bank v. Dearing, 91 U. S. 29, 36; Schlesinger v. Gilhooly, 189 N. Y. 9-11. Under the very terms of the statute the plaintiff was entitled to recover twice the amount of all the .usurious interest he had paid within two years.
Cumulative recoveries of penalties are sometimes allowable. People v. Spencer, 201 N. Y. 105, 109; Grover v. Morris, 73 id. 473; Suydham v. Smith, 52 id. 383, 389; People v. N. Y. C. & H. R. R. R. Co., 13 id. 78, 82.
The judgment should be reversed and a new trial ordered, with costs to appellant to ábide.the event.
Seabuey and Bijuk, JL, concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.
