Wilmarth v. Heine, 121 N.Y.S. 677

Wilmarth v. Heine

121 N.Y.S. 677 | N.Y. App. Div. | 1910

Sewell, J.:

The first question presented upon this appeal is one relating to practice. The respondent claims that wc have no power to review any question of law or fact, as it appears that no exceptions have been filed to the decision of the court. The. question of the necessity for exceptions where, as in this case, there is a certificate showing that it contains all the evidence, was presented in Hill v. White (46 App. Div. 360). In discussing, the question in that case we said: “ By section 992 of the Code exceptions to findings of fact in actions tried by the court are forbidden, and questions of fact in a. case like the present may be reviewed upon appeal without exceptions, provided that the case contains á certificate that' it contains all the evidence.” " ' -

The other question presented is whether there was a bona fide sale of the defendant’s wages or a device to cover a usurious loan. I think it is plain from the facts appearing in the record that the transaction was not an actual sale but a scheme by means of .which the most, flagrant extortion was intended to be practiced by the plaintiff upon the defendant.

The written instruments taken in connection with the history of *529the transaction, as testified to by the plaintiff, show a device contrived for the purpose of concealing a loan and enabling him to exact a greater profit than six per cent for the use.of his money. The defendant made an application to the plaintiff for a' loan of money. He had no security to give except his wages, and the plaintiff advanced the amount 'applied for upon the condition that the defendant should repay it, and sixty-five dollars in addition, out of the monéys to be received by him for services rendered. In this, as in every other case where the question of usury is- raised, the transaction must be judged by its real, character rather than by the form and color which the parties have seen fit to give it. There can be no doubt from all the facts and circumstances of this case that the substance and effect of the transaction was not a bona, fide sale of wages but a borrowing on the one side and a lending on the other at a greater rate of interest than that allowed by law. My conclusion, therefore, "is that the defendant was not liable for con-' version upon failing to pay over the moneys to the plaintiff and that the judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Chester, J., not voting, not being a member of the court when the decision was handed down.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.