Katz v. Fischel — 174 Misc. 589

Majority

p. 589

Emil Katz, Appellant, Respondent, v. Albert Fischel, Respondent, Appellant, Impleaded with Others, Defendants.

Supreme Court, Appellate Term, First Department,

June 28, 1940.

Oscar Marks [Emanuel H. Bloch of counsel], for the appellant, respondent.

Louis L. Resnick [Martin N. Whyman of counsel], for the respondent, appellant.

The admitted promise to pay the plaintiff $500 in consideration of the loan of 2,400 reichmarks was not shown to be usurious under the law of Germany, where the transaction took place. Nor was there any evidence that the loan was made in Germany in order to avoid the law of usury prevailing in this State.

p. 590

Under the circumstances, the mere fact that repayment was to be made in this State furnishes insufficient basis for invalidating the loan as illegal under our usury statutes. (66 C. J. p. 150, § 21; Id. p. 151, § 22; Bank of Georgia v. Lewin, 45 Barb. 340 ; Hooley v. Talcott, 129 App. Div. 233 .)

Furthermore, the loan was to be repaid when plaintiff arrived in this country and defendant failed to offer any evidence as to when plaintiff intended to come to this country. In the absence of a showing that at the time the loan was made plaintiff intended to come to this country at a date which would render the transaction usurious, there was no basis for a finding that the loan was made with a corrupt and usurious intent.

Judgment modified by increasing the amount awarded to the plaintiff to the sum of $400, together with interest and costs, and as modified affirmed, with twenty-five dollars costs to plaintiff-appellant.

Defendant’s appeal dismissed.

Hammer and Miller, JJ., concur; Shientag, J., dissents.

Cases cited

Bank of Georgia v. Lewin 45 Barb. 340 N.Y. Sup. Ct. 1865-11-06 p. 590