74 N.Y.S. 620 | N.Y. App. Div. | 1902
The action' was commenced to recover the amount of three promissory notes; the first, dated July 12, 1900, whereby ninety days after date the defendant promised to pay to his own order $4,217.60 ; the second, dated October 10, 1900, for $150, and the third, which was also dated October 10, 1900, for $100. The answer admits the making of the notes, alleges that the two notes, dated October 10, 1900, were without consideration and given in pursuance of a usurious agreement by which the amounts represented by the notes were to be paid for an extension of the time of payment of the note dated July 12, 1900, for ninety days; and alleges as a separate defense that there was another action pending between the plaintiff and the defendant to recover the amount agreed to be paid by the note dated July 12, 1900. The case was referred to a referee and on the trial the defendant proved that on the tenth of October, when the two notes of October tenth were given, he went to the plaintiff to procure a renewal of the note of July 12,1900; that the plaintiff told the defendant to sign the other notes; that they were necessary to give to other parties in order to renew the note of July twelfth ; that an action was commenced in the City Court on the 1-Oth of October, 1900, whereby the plaintiff in this action sought
“ It is hereby stipulated on the part of the plaintiff that he will not enter judgment until after ninety days from date, and on the part of the defendant that he will not interpose any defense to this action.”
The plaintiff in rebuttal proved that by a mistake the name of the City Court was inserted in the title of that action; that at the expiration of the ninety days, at which- time plaintiff was entitled under the stipulation to enter judgment, the plaintiff’s ■ attorney discovered the mistake; that he then tore up the summons and complaint in the City Court action as useless and commenced this action in the Supreme Court. The referee held that there was no consideration for the giving of the two notes dated October 10,1900) and that they were obtained from the defendant on a usurious agreement for an extension of the first note ; and that the defense of the pendency of the former action as to the note of July. 12, 1900, was good, and dismissed the complaint.
We think the referee correctly disposed Of the question submitted to him. It is not disputed that the two notes of October tenth were given as a consideration for the extension of the payment of the nóte of July twelfth, and by which the plaintiff exacted interest in excess of that allowed by law; and as there was no other consideration for the notes they could not be enforced. We also think that the action in the City Court for the -recovery of the amount of the note of July twelfth was a good defense to the cause of action-based on that note. In the action in the City Court the defendant had stipulated that, he would not interpose a defense, but would allow the plaintiff to take judgment unless the note was paid within ninety days. Upon the expiration of that time the plaintiff was entitled to enter a judgment. The jurisdiction-of the City Court is fixed by section 315 of the Code, which provides that “ the jurisdiction of the City Court of the city of New York extends to the following cases: 1. An action against a natural person * . * * wherein the complaint demands judgment for a sum of money.” This was such
It follows that the judgment appealed from should be affirmed* with costs.
Van Brunt, P. J., O’Brien and Hatch, JJ., concurred.
Judgment affirmed, with costs.