Taylor v. Jackson

while interest for the whole period the notes had to run (except the days of grace) was deducted, it was not proven affirmatively, nor does it appear, that this transaction did not occur within the three days, and far less that there was any corrupt agreement for usury, or anything hut a mistake in the calculations made to the prejudice of BIoss in stating the discount. While the usury alleged in the answer was unproved, defendants seek further to maintain as a defense that the agreement on which these notes were made and issued was usurious. On making these notes they received the notes of Albert C. BIoss in exchange, exacting in the notes which they received from BIoss an additional sum of twenty-five dollars on each note, and requiring them to be payable at shorter periods than their own. No such usury as that transaction might indicate was set up in the answer; and the allegation that the notes in §uit were accommodation notes was wholly disproved, as the defendants fully conceded that they had received the notes of A. C. BIoss in exchange. It is, however, contended that, as the testimony showed the notes they received for those in suit were void as between them and A. G. BIoss, and not enforceable against the latter for the usury they exacted, that circumstance rendered these notes equally void in the hands of the plaintiffs, the purchasers. No such defense is set up in the answer. The allegation predicated upon their being mere accommodation makers was wholly disproved. The right to assert the defense now first presented on this argument was wholly personal to A. C. BIoss, the person aggrieved. It has been well established in this State that no party can take advantage of his own wrong, nor can one guilty of exacting usury set up his own turpitude as a defense to such obligation as he thereupon entered into or incurred (Lafarge v. Herter, 4 Barb. 346 ; s. c. 9 N. Y. 241 ; Billington v. Wagoner, 33 N. Y. 31 ; Williams v. Tilt, 36 N. Y. 319 ). The defense of usury is personal to the borrower, who complains of the injury, or those standing as his legal representatives ( Williams v. Tilt, supra ; Ohio & Miss. R. R. Co. v. Kasson, 37 N. Y. 224 ). TIpon'these considerations, the defense last attempted to be sustained upon the fact incidentally elicited on the trial, that on the exchange of notes first referred

to the defendants exacted such usury as might afford a defense to the notes they received, and now first urged, without having been presented to the consideration of the court on the trial, or by any pleading, so as to afford the plaintiffs opportunity to. meet it, is plainly one in its very nature unavailable in law or equity, and the decision of the judge upon the trial was unexception ally correct. The judgment appealed from should be affirmed.

Larremore, J., concurred.

Judgment affirmed.