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Mackey v. Royal Bank

133 N.Y.S. 944 Court Argued February term, 1912, before SEABURY, GUY, and BI-JUR, JJ- Decision date 1912-03-08 English

Delivered by GUY, J.

Contents

Majority

p. 944
MACKEY v. ROYAL BANK OF NEW YORK.
(Supreme Court, Appellate Term.
March 8, 1912.)

Headnote

1. Banks and Banking (§ 181[1] )-—Penalties—Action fob Cumulative Penalties.
Consol. Laws 1909, c. 2, § 74, provides that, where a bank or banker charges a greater rate of interest than 6 per cent., the person paying the same, or his representative, may recover twice the amount of interest paid, if such action is brought within two1 years from the time the excess of interest is taken. It also provides that the true intent of the section is to place and continue banks and private individual bankers on an equality in the matters referred to with national banks organized under the federal laws. Under the federal statute applying to national banks, which gives the same right of recovery as the state law, the party entitled to maintain the action has been held entitled to recover twice the amount paid for usury within two years prior to the commencement Of the action, whether the amount was paid in one or several payments. Held, that the plaintiff, in an action under the state law to recover the double liability, was entitled to recover twice the amount of all usurious interest paid within two years prior to the bringing of the action, and his complaint charging several separate and distinct violations within the two years was improperly dismissed as an action for cumulative penalties.
[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 686-700; Dec. Dig. § 181.*]
2. Penalties (§ 4*)—Cumulative.
Cumulative recoveries of penalties are sometimes allowable.
[Ed. Note.—For other cases, see Penalties, Cent. Dig. § 4; Dec. Dig. § 4.*]
Appeal from Municipal Court, Borough of Manhattan, Eighth District.
Action by Joseph F. Mackey against the Royal Bank of New York. From a judgment for defendant on á dismissal of the complaint, plaintiff appeals.
Reversed, and new trial ordered.
p. 945
Argued February term, 1912, before SEABURY, GUY, and BI-JUR, JJ-
Thomas A. McGrath, for appellant.
E. E. Warren (J. M. Grossman, of counsel), for respondent.-

This action was brought to recover penalties from the defendant, a private banker, under section 74, c. 10, Laws 1909, being chapter 2, Consol. Laws 1909. The complaint alleged as one cause of action 21 separate and distinct violations of the act, and asked judgment for twice the amount of illegal interest paid, aggregating $157.50. The court dismissed the complaint, on the ground that it was “an action for cumulative penalties.”

[1] Section 74 of the banking law provides that its true intent and meaning is to place and continue state banks and private bankers on an equality with national banks. In an action against a national bank to recover usurious interest—

“the party entitled to maintain the action is entitled to recover twice the amount he had paid for usury within two years prior to the commencement of the action, whether the amount was paid in one or several payments.” Hintermister v. First Nat. Bank, 64 N. Y. 213 , 214-217; Farmers’ Nat. Bank v. Dearing, 91 U. S. 29 , 36, 23 L. Ed. 196 ; Schlesinger v. Gilhooly, 189 N. Y 9 -11, 81 N. E. 619 , 12 Ann. Cas. 1138.

Under the very terms of the statute the plaintiff was entitled to recover twice the amount of all the usurious interest he paid within two years.

[2] Cumulative recoveries of penalties are sometimes allowable. People v. Spencer, 201 N. Y. 105 , 109, 94 N. E. 614 ; Grover v. Morris, 73 N. Y. 473 ; Suydham v. Smith, 52 N. Y. 383 , 389; People v. N. Y. C., 13 N. Y. 78 , 82.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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