78 A.D. 282 | N.Y. App. Div. | 1903
One Alexander Roux, by his last will and testament, gave to the defendant Charles A. Roux an annuity of $1,200 by the following
The answers of the defendants allege that the transaction was a loan of money and that the loans were usurious .and void and that the plaintiff had collected the total amount of the loans and interest that he signed the powers of attorney and assignments upon the understanding that they were security for the said loans and were not intended as an absolute conveyance or bill of sale; and asked as affirmative relief that the bills of sale set forth in the complaint be declared usurious and void; that the various powers of attorney may be adjudged usurious and void and of no effect; that the said bills of sale and the powers of attorney be canceled, and the plaintiff be held to account for the money that she has received. The defendant Roux on the trial testified that all of the transactions were loans of money; that he executed those instruments upon the representation of Rothschild that they were to secure the repayment of the amount loaned; that he signed these instruments without knowledge of their contents. Rothschild testified that the first transaction was a loan; that he loaned Roux $240 and received therefor an assignment of the amount of the annuity which became due on the first of August amounting to $300, and the balance of the $300, after charging interest on the amount loaned, was applied to the payment of his lawyer’s fees and other expenses; that when Roux subsequently applied for a loan he informed him that he would not loan him any more money, but would buy the annuities, and that all the subsequent transactions were sales of the subsequent installments of the annuity, of all of which Roux had full knowledge, and he seeks to sustain the transaction as a transfer of the annuities due or to grow due in the future. The court found as a fact that the transactions between the plaintiff and the defendant set forth in the complaint and the answers were usurious loans and not sales of installments of the annuity and that the bills of sale and powers of attorney mentioned in the complaint and answers were
It is quite clear that upon Roux’s statement of this transaction these advances by the plaintiff were loans of money only ; that the finding of the trial court that the plaintiff had received the amount loaned with interest justified the judgment appealed from, and this finding was sustained by the evidence. Roux’s testimony that the transactions were loans and were so understood to be at the time they were made is corroborated by the fact that Rothschild concedes that the first transaction was a loan, and the entries in his books are the same in relation to the subsequent transactions as to the first, and also by the fact that sometime after this transaction commenced the plaintiff compelled Roux to take out two policies of life insurance, one for $2,000, and the other for $3,000. One of these policies was taken out on September 18, 1899, and one on January 9, 1900. On September 6, 1899, the plaintiff paid to Roux $200, and on September 20, 1899, $300, and on February 13, 1900, paid him an additional sum of $250. Roux, having taken out these-policies upon his life, assigned them to the plaintiff. In the assignment of the $2,000 policy which was prepared by the plaintiff, or her representatives, she was described as “ a creditor, amount of indebtedness $3,000.” The assignment of the policy for $3,000, which was dated February 13, 1900, contained this provision: “ This assignment is made as collateral security for the payment of an indebtedness to the said assignee in the sum of three thousand 00/100 dollars.” The finding, therefore, of the trial court that these payments were in fact loans and not sales of the annuities is corroborated by the very instruments that the plaintiff required Roux to sign at the time some parts of these payments to him were made. It is not denied by the plaintiff but that she has collected from the trustees annuities aggregating $2,700, which would be sufficient to repay her all the amounts that she claims to have advanced, with interest; and eliminating the usurious conditions which it is claimed were a part of these loans, the plaintiff has received all that she advanced, with interest, and was not entitled to hold the assignments of subsequent accruing annuities.
We think, therefore, that upon the finding of the court that this transaction was in effect a loan and not an' absolute assignment of the annuities, and that the loan had been paid, the defendant was entitled to the judgment awarded him. We also think that the plaintiff was not entitled to recover, as these assignments of the
It follows that the judgment appealed from is affirmed, with costs.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ..y concurred.
Judgment affirmed, with costs.