102 N.Y.S. 827 | N.Y. Sup. Ct. | 1907
Consolidated actions to set aside certain judgments and orders rendered and made in the course of litigation between the plaintiff, Lorenz Reich, and William F. Cochran, founded upon rights deemed to have been acquired by the said Cochran by virtue of certain leases, agreements, bonds, and mortgages made by the plaintiff to or with the said Cochran, which instruments are alleged by the plaintiff to be open to avoidance for usury upon an inquiry upon the merits, which inquiry has been prevented by the existence of these judgments and orders. In the year 1886, the plaintiff, the lessee of premises at the. corner of Fifth avenue and Thirty-Third street, obtained a loan of $100,000 from Mr. Cochran upon the security of the lease, for the purposes of the hotel business which he desired to conduct at that place. Thereafter he obtained further loans, and, ultimately, the premises came into the possession of Mr. Cochran as the result of an assignment to him of the lease by the plaintiff, and the making of a- final order in a certain dispossess proceeding, instituted by Cochran, as landlord, against this plaintiff, as tenant, in the Sixth judicial district court in the month of August, 1893, followed by the execution of a warrant in a later proceeding on March 17,1893. The contention of the plaintiff is
After some discussion of the proposed loan Mr. Cochran wrote a letter to his attorney, Mr. Fitch, and gave it to the plaintiff for delivery. Before delivering this letter, however, the plaintiff caused it to be photographed and the photographic copy was produced by him at the trial. The letter is as follows:
*829 “Mr. Tlieo. Fitch—My Dear Sir: In an interview with Mr. Lorenz Reich this day I learned that to carry out his plans he will require me to increase my loan to $130,000. I have suggested to him,, in view of my contributing so large an amount, that he give me an interest in the lease. He proposes in lieu of this that he give me the entire and sole use of a suite of three rooms on the second floor, Fifth avenue front, for the term of the loan. If there be no legal objection to such a consideration I am willing to so increase the loan, subject to such an agreement as you may draw or approve. I expect to be home on Saturday, September 18th.
“Yours truly,
William F. Cochran.”
“Usury is a defense which must be strictly proved, and the court will not presume a state of facts to sustain that defense where the instrument is consistent with correct dealing.”
My finding is that if these various judgments and orders were open to attack upon grounds sufficient for equitable cognizance, still the plaintiff has no standing to invoke equitable relief sjnce he has not been deprived of an opportunity to litigate a claim of probable merit; but, as I must also hold, the facts do not suffice for an attack upon these various adjudications. The matter was discussed by the Appellate Division at the time when the new trial, now concluded, was ordered, and upon this branch of the case the condition of the proof remains substantially tire same. It is claimed for the plaintiff that the final order in summary proceedings of August 17, 1892, was made without jurisdiction, in that the precept was not served upon the tenant Reich personally or by delivery to a person residing upon the premises, as required by law, and that there was no authorized appearance. for him upon the return day. Upon the question of jurisdiction, the marshal’s certificate shows service of the precept upon Frederick Walmsley, a person in charge of the premises during the absence of the tenant on August 12, 1892, and the contention of the plaintiff is that Walmsley, a clerk of the hotel, was absent from the city upon a vacation during the first two weeks of August of that year. The proof, however, is not sufficient to establish this, fact and .to override the certificate of service. Walmsley, called as a witness,
The fraud is predicated on the alleged falsity of the affidavit of one Bagg, a process server, to the effect that in the city of New York, on the 4th day of August, 1892, he personally served upon Reich, this plaintiff, the statutory written demand for rent as a preliminary to the dispossess proceedings. It is claimed that this affidavit was knowingly false, and that Cochran, when availing himself of the assertion of service, was chargeable with knowledge of the fraud. Upon the evidence before me I do not find that there was fraud in the matter of the service or proof of service of the demand for rent. There is nothing to show that Bagg did not honestly believe what he stated when making the statement that he had served this paper upon Reich, assuming that the service was not actually made, but I am not impressed with the evidence that the paper was not served. Bagg testifies that he served the demand as stated in his affidavit. To negative this the plaintiff states that he was continuously at his country home at Brentwood, Long Island, from July 31st to August 17th, and was not in the city of New York during that period. Three witnesses, his .guests at Brentwood at the time in question, testify that the plaintiff did not go to the city during the 16 days, according to their recollection; but in view of the fact that Brentwood was accessible from the city in an hour’s journey the recollection of these witnesses after the lapse of 12 years (when they first testified) is far from conclusive. "Their general impression of Reich’s presence during their stay as his guests need not necessarily have been affected by his absence for three or four hours on any one day, and there is evidence which
Proposed decision in accordance with the views expressed by me, and embodying such findings as have been made at the request of the parties may be submitted on notice of settlement.