120 N.Y.S. 790 | N.Y. App. Term. | 1910
Lead Opinion
The action is on two promissory notes' for $75 each, made by the defendant Alexander Katz to the order of Jacob Katz, and indorsed by the latter and one Nathan Finkelstein. The defense was usury.
It appears, without contradiction, that one Julius H. Zieser, the attorney who represented the plaintiff in the transaction, exacted and received $25 as a condition of the loan of $150, for which the two promissory notes in suit were given; but there is no evidence in the record which justifies an inference that the plaintiff received any part of the sum so exacted, or knew of or assented to its exaction. The plaintiff
Mr. Zieser admitted that he caused such advertisement to be inserted in the newspapers in question, because, as stated by him, he, at the time in question, had clients who offered to loan money, and that in this particular case he introduced the defendant Jacob Katz to the plaintiff. A check for $150, the face amount of the two notes in controversy, was left by the plaintiff with Mr. Zieser, to be delivered when arrangements for the loan were perfected. The check was delivered by him to the defendant Alexander Katz in exchange for the notes, and the check was cashed in the presence of Mr. Zieser, who in furtherance of his previously declared intention to do so retained $25 out of the $150 so received from the proceeds of the check.
The plaintiff was not present upon any of these occasions, and there is no proof whatever that he knew that such sum was exacted by his attorney. It was incumbent upon the defendants to show that the attorney retained said sum of $25 with the knowledge and consent of the plaintiff. The mere fact that the attorney exacted and retained said sum is not sufficient. Stillman v. Northrup, 109 N. Y. 473, 477, 17 N. E. 379; Bliven v. Lydecker, 55 Hun, 171, 172, 7 N. Y. Supp. 867. Usury cannot be presumed, but the burden of establishing it was upon the defendants. Stillman v. Northrup, supra; Ferguson v. Bien, 47 Misc. Rep. 618, 619, 94 N. Y. Supp. 459; Cameron v. Fraser, 48 Misc. Rep. 8, 10, 94 N. Y. Supp. 1058. As was said in Stillman v. Northrup, supra, at page 478 of 109 N. Y., and page 380 of 17 N. E.:
“The defense of usury, involving crime and forfeiture, cannot be established by mere surmise and conjecture, or by inferences entirely uncertain. If, upon the whole case, the evidence is just as consistent with the absence as with the presence of usury, then the party alleging the usury-has failed; and so it has been repeatedly held.”
Tested by these rules, it is manifest that the defendants did not sustain the burden of proving usury, which, as seen, it was incumbent upon them to do.
The judgment should therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.
Concurrence Opinion
(concurring). The defendant’s story of the transaction is so confused by his indiscriminate use of the pronoun “he” to describe the plaintiff and also the plaintiff’s attorney that it does not clearly appear whether or not he claims that the plaintiff was present and cognizant of the alleged usurious transaction. Moreover, the attorney to whom the bonus was paid was apparently not only the plaintiff’s attorney, but the broker employed by the defendant to procure
The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.
Dissenting Opinion
(dissenting). Action to recover on two promissory notes, made by Alexander Katz to the order of the Fortuna Extract & Color Works—Jacob Katz—with interest, $75, each, indorsed by Alexander Katz, The Fortuna Extract & Color Works, by rubber stamp, Jacob Katz, and Nathan Einkelstein. Defendants appeared, and the parties without objection proceeded to trial upon an answer, verified by the defendant Einkelstein, setting up usury. Judgment was rendered for defendants. Plaintiff appeals.
The attorney of record for plaintiff also acted for him in making this loan, but testified! that he acted as broker, and received for his services “about” $10 from Jacob Katz, who came to Mr. Zieser through an advertisement in a Hebrew newspaper. Mr. Zieser, to emphasize his status, testified positively that he was not. plaintiff’s agent in this transaction, and that he was looking out for his (Zieser’s) own interest. Jacob Katz was in financial stress. Mr. Zieser demanded a bonus of $25. This was resisted by Katz and Einkelstein, the latter saying:
“I told Mr. Zieser that the amount charged,' $30, for interest,, was too much, and he told me I would get $5 out of it, and $25 goes to the man who gave the money.”
Silverman said1 that Zieser was his attorney in the matter of these notes, which were dated January 26, 1909. Zieser insisted upon the indorsements of Alexander Katz and Einkelstein. This evidently consumed time, for not until February 4, 1909, did plaintiff take the notes, and give Jacob Katz his (plaintiff’s) check for $150 to the order of the payee. On that day, according to Jacob Katz’s testimony, he went with plaintiff to the Bowery Bank, where plaintiff identified him, whereupon the check was cashed, and plaintiff received the $25. Silverman was asked:
“Isn’t a fact that-you went along to the bank, and that the money was drawn In your presence, and $25 cash was returned to you out of the proceeds of this check? A. No, sir; he asked me I should indorse the check on the side, so he could get the cash, which I did.”
The check shows it was not deposited by Katz, and, though it bears the identification and indorsement of Silverman, the probability is that he went to the bank and got the $25, which he could not have collected otherwise. Furthermore, Zieser is contradicted by Silver-man on the “broker” theory. Zieser does not state when or where “about $10” was paid to him by Katz. This is significant, for two reasons: First, he knew Katz was without funds; second, there is no evidence, even tending to show that Katz and Zieser met after the
The judgment should be affirmed, with costs.
