212 A.D. 756 | N.Y. App. Div. | 1925
The complaint set up the making of a promissory note for $8,800 by Erma S. McKeage and B. F. McKeage on November 21, 1923; the indorsement of the note for value by the defendant Roe; the delivery of the note for value to the plaintiff; the non-payment of the note at maturity. It demanded judgment for the principal sum of the note with interest. The answer set up that the note sued upon was given in renewal of two notes made by B. F. McKeage and indorsed by the defendant; that the first note, dated October I, 1923, was for $5,000; that the second note, dated November 16, 1923, was for $3,800; that the consideration for the first note was a loan of $4,500 made by plaintiff to B. F. McKeage; that the consideration for the second note was a loan of $3,500 to B. F. McKeage; that the notes evidenced a usurious agreement and that the note in suit was void. The plaintiff, in obedience to an order, served a reply. In explanation of the origin of the $5,000 note he alleged
The case of Orvis v. Curtiss (157 N. Y. 657), upon which the plaintiff appears confidently to rely, does not seem to us to require in the case at bar a conclusion other than we have expressed. In that case Orvis, the plaintiff, was a member of a stock brokerage
The plaintiff contends that the occurrence of the event, upon which the plaintiff’s right to the additional sum of $800 depended, namely, the successful conclusion of the real estate deals, might have been averted by the defendant and McKeage; that they might at will have abandoned the real estate deals; that it was thus within their power to prevent the plaintiff from collecting more than the legal rate of interest; that the agreements were, therefore, not usurious. The case of Diehl v. Becker (227 N. Y. 318) constitutes a complete answer to this contention. In that case the plaintiff loaned $5,000 to one Hoffmann. Hoffmann agreed to repay the moneys loaned, with legal interest. He also agreed that if he made a lease or sale of certain patent rights owned by him within a certain period of time he would pay the plaintiff an additional sum out of the moneys received therefor. Notwithstanding the fact that Hoffmann might or might not, as he desired, sell or lease the rights, the court held that the transaction was usurious. The court said: “ It is true he might not sell them. But in any event the plaintiff was entitled to his principal and interest and in addition thereto he acquired this contingent right. It was a valuable right. He acquired it under the original contract as part compensation for the loan. No act of the borrower might deprive him of it. The plain
For the reasons stated the order should be reversed and judgment directed dismissing the complaint, with costs.
All concur.
Order reversed on the law, and complaint dismissed, with costs.