104 N.J. Eq. 357 | N.J. Ct. of Ch. | 1929
This is a bill to foreclose. The only defense interposed is that of usury. The defendant Louis Petnick answers and *358 says that he executed to the complainant a certain bond purporting on its face to secure the sum of $17,000, conditioned for the payment of that sum within five years from the date thereof, with interest at the rate of six per cent. per annum payable semi-annually, but denies that he was indebted to complainant in any such sum, and further says that the complainant only advanced the sum of $15,850, which was actually received by him as the consideration for said bond, notwithstanding it was therein recited that the indebtedness to the complainant was $17,000; and by way of special defense the defendant says that the bond and mortgage and the alleged indebtedness set forth in the bill of complaint are all tainted by usury and therefore void under the act of the legislature entitled, "An act against usury," for the reason that the defendant received the consideration aforementioned, notwithstanding that the bond and mortgage recited the full sum above set out; that although defendant received only the sum of $15,850, he paid the complainant interest on the sum of $17,000 from the date of the bond, March 14th, 1927, until March 14th, 1928, and that the complainant actually received usurious interest in the sum of $69; and he further says that he stands ready and willing to pay the complainant the sum of $15,781 (usurious interest paid being included) if complainant is willing to accept the same and take a decree for such sum without interest or costs.
The complainant now moves to strike out that part of the answer which attempts to set up usury as a defense and to refer the cause to a master in the usual form according to the practice of the court.
Complainant submits that the averment of the answer that the transaction was tainted with usury is not based upon facts showing a corrupt agreement in violation of the statute, but which are inferred solely from the fact that the amount admitted to have been received was less than the amount stated in the bond and mortgage; and that the averment ignores the plain provisions of the statute, which are that no person or corporation shall upon contract take directly or indirectly *359 for loan of any money above the value of six dollars for the forbearance of $100 for a year; or shall enforce any note, bond, mortgage or contract made for the payment of any money lent, on which a higher rate of interest shall be reserved or taken than is allowed by the law of the place where the contract was made; in which case the amount actually lent, without interest or cost of suit, may be recovered and no more. 4 Comp. Stat. p. 5704 §§1, 2.
In Taylor v. Morris,
In the case at bar it is true that there is no averment of any corrupt or usurious agreement between the parties, but it will be observed that the amount of the usurious premium and interest is particularly set out.
In Crane v. Homeopathic Mutual Life Insurance Co.,
This appears to be the latest declaration of the court of errors and appeals upon this question, for although Marsh v.Vanness,
While it appears, therefore, that the defense in this case is not pleaded with sufficient certainty, the question yet remains, may not the defendant amend his answer to set up that which he has, but defectively, pleaded, yet hoped and intended properly to plead? The defendant asks leave to *361
amend and does not propose by the amendment to make a new defense but merely more effectually to state one already presented by the answer. See Arnaud v. Grigg,
In Glading v. Cubberly,
I do not think that the fact that usury was set up in that case in the ordinary form appropriate to pleading it, is of special significance; for, it appeared that the agreement was not made in this state but in Pennsylvania, and there was no pleading of that at all. The case is a strong one for the allowing of an amendment in this case, upon terms.
In Boehme v. Rall,
In Vineland v. Maretti,
Now, the motion here is to strike out that part of the answer setting up usury and to refer the cause to a master, notwithstanding the answer. Rule 192 of this court provides that whenever in a suit for foreclosure of mortgage or for partition the answer shall not appear to set up any defense or present any question except such as, in the opinion of the court, may be properly referred to a master, the same may be so referred. InCollins Realty Co. v. Sale,
The defendant will be permitted to amend his answer by properly pleading the defense of usury; and the cause will be referred to a master for report, notwithstanding the answer. The defense of usury can well be passed on by a master. The order of reference must specify the subjects upon which the master is required to report, and he will, of course, be confined to the directions of such order. Collins Realty Co. v. Sale, supra.
The defendant may take an order to amend, and the complainant may take an order of reference to a master. Each party prevailing in part no costs will be allowed on this motion, according to the rule. Folkman v. Myers,