35 Barb. 96 | N.Y. Sup. Ct. | 1861
Upon the trial the defendant, who is the mortgagor, offered to prove the facts set forth in his answer, and insisted that if proved, they established the defense of usury. The plaintiff objected to the evidence, on the ground that the facts stated in the answer did not show the defendant a borrower, or surety, for John W. Dickson, (who was the borrower.) The referee decided that the answer was not sufficient to make out a case of usury, and sustained the objection. The answer set forth a usury loan to John W. Dickson, secured by his bond and mortgage for twelve hundred dollars, dated November 1st, 1857, and then averred in substance, that on the 20th of March, 1858, the defendant, at the special instance and request of the said John W. Dickson and without any consideration therefor,
The judgment must be reversed, and a new trial granted, costs to abide the event.
Bacon, Allen, Mullin and Morgan, Justices.]