135 N.Y.S. 532 | New York County Courts | 1912
On the 14th day of November, 1910, the defendant came to the plaintiff’s place of business in the city of Rome and obtained from him fifteen dollars. Thereupon he signed a paper which is known in this action as defendant’s exhibit 1, the purport of which was to assign wages alleged to be due, in' reality to be earned, from defendant’s employer, to the amount of eighteen dollars and seventy-five cents. At the end of that week and on the 19th of November, 1910, defendant again .called upon plaintiff and paid him at least eight dollars and seventy-five cents, and gave him defendant’s exhibit 2, dated November nineteenth, reciting a consideration of ten dollars, and assigning defendant’s wages to the amount of twelve dollars and fifty cents. The following week, on November twenty-sixth, the defendant again called upon plaintiff, gave him at least two dollars and fifty cents and signed another paper known as defendant’s exhibit 3, pur
Accepting either the plaintiff’s or defendant’s version, it does not seem right as a matter-of simple justice that plaintiff should have, out of this original advancement of fifteen dollars, received back sixteen dollars and twenty-five cents (defendant claims four dollars more),- -and still hold an assignment of fifteen dollars against the defendant’s wages and,, on top of all that, have a judgment for twelve dollars and fifty cents and costs; yet that is exactly the situation as it exists here.
It is the theory and claim of the plaintiff that each and all of the transactions above set forth are separate and dis
However, even if we were bound to assume that, for purposes which are apparent, this plaintiff went through the form of requiring defendant to bring in and turn over to him the amount of his earnings each week, it seems to me that it was a matter of form only, and a mere subterfuge to enable this plaintiff to extort from the defendant three dollars and seventy-five cents for what amounted to a loan of fifteen dollars for one week, and two dollars and fifty cents on'at least three occasions for what amounted to a loan of ten dollars for one week. It is unquestionably true that plaintiff never invested but fifteen dollars in this deal, and he himself admits that he has received back sixteen dollars and seventy-five cents. His attorney urges, with great plausibility, that his client has discovered a way to defeat the usury laws; and, if his contentions are to be sustained, his client has indeed discovered a way to defeat not only the usury laws, but justice as well. It is his contention that in fact the court cannot look beyond any one of these instruments, or any one of these transactions; and, because a certain form has been gone through with, and a certain pretense carried out, that the court has not either the sense or the power to look at the transaction as a whole and determine'whether they are really part and parcel of the same deal. I do not believe that the law, or the administration of the law, is so. futile and im
If we are to decide that this judgment is to stand, it then becomes possible, by the simple subterfuge of taking a new assignment of wages each week, for a man to loan another fifteen dollars, collect at least sixteen dollars and twenty-five cents, and then get a judgment for within two dollars and fifty cents of his original advancement, to say nothing of holding an assignment of wages for the same amount as his original advancement. The whole transaction irresistibly appears to me to be one and the same deal. Exhibits 1 to 5 and exhibit A all fit in in dates and amounts with .the defendant’s version of the transaction, substantiating it in every detail. Each of the exhibits is in the same form as t~he others, and each eloquently testifies to the truth of the defendant’s contention. It is impossible to see how the justice can reconcile a recovery on the part of the plaintiff with the admitted existence of defendant’s exhibit 5. Plaintiff admits that he has such a paper, and its date is January eighteenth, upward of a month after exhibit 1 upon which he brought his suit was given. It is for two dollars and fifty cents more than exhibit 1, and it appears by evidence .that it is not disputed, and cannot be, that plaintiff was making claims under it on the employer of defendant and trying to collect.it. It appears by the evidence of the witnesses Eosenburg and Barnard that plaintiff, in his efforts to collect this post-dated obligation, stated to them unequivocally that Fisher only owed him fifteen dollars, and that is just the amount of exhibit 6. Bone of.the other exhibits was for that amount. Plaintiff admits that he has such a paper, but says that he never surrendered exhibit A, and would have us believe fhat the five dollars difference between exhibit 5 and the amount claimed to be advanced on exhibit A was “ a voluntary payment ” on defendant’s part. Inci
I, therefore, reach the conclusion that the judgment of the justice should be reversed, with costs.
Judgment reversed, with costs.