Levenson v. Arnold — 100 N.Y.S. 1021

Majority

p. 1021

LEVENSON v. ARNOLD.

(Supreme Court, Appellate Term.

November 14, 1906.)

Headnote

Trial—Refusal to Charge on Issue.

There being some evidence tending to establish the defense of usury, it was error for the court to refuse to charge thereon, and to state, “I will not charge as to usury at all.”

[Ed. Note.—For cases in point, see vol. 46, Cent Dig. Trial, §§ 613-616.]

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by Joseph Levenson against Manes Arnold. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

See 97 N. Y. Supp. 990 .

Argued before GIRDERSREEVE, DUGRO, and DOWRING, JJ.

Charles Tolleris, for appellant.

Samuel Manheimer, for respondent.

The pleadings are oral. The action is brought on promissory notes. The defenses are payment and usury. The case was tried before the justice and a jury, and a verdict was rendered for plaintiff. Defendant appeals.

Although there was some evidence tending to establish the defense of usury, the justice refused to charge the jury on that branch of the case. The language of the court was: “I will not charge as to usury at all.” We think this refusal was prejudicial error.

The judgment is reversed, and a new trial granted, with costs to appellant to abide the event. All concur.