Willson v. Fisher — 135 N.Y.S. 532

Majority

p. 532

(75 Misc. Rep. 382.)

WILLSON v. FISHER.

(Oneida County Court.

January, 1912.)

Headnote

1. Usury (§ 18*)—Loans of Money.

Where a borrower gave as security for a loan of $15 an assignment of his future wages to the extent of $18.75, and, on the payment of $8.75 the next week, assigned his weekly wages amounting to $12.50 for the recited consideration of $10, and for three successive weeks thereafter paid $2.50 and gave a new assignment of his weekly wages, and in Justice’s Court the lender testified that he had received $16.25 in excess of the original loan, and the borrower testified that he had paid $20.25, it appearing that, after the assignment sued on a subsequent assignment of wages for $15 for a recited consideration of $10 had been made, a judgment for the lender for $12.50 should be reversed.

[Ed. Note.—For other eases, see Usury, Cent. Dig. §§ 31-34, 36-38, 40; Dec. Dig. § 18.*]

2. Usury (§ 18*)—Transactions Invalid—Subterfuges.

The requirement by a lender that the borrower bring in weekly his wages, of which the lender had taken an assignment as security, was a mere subterfuge to enable the lender to extort $3.75 for a loan of $15 for one week and $2.50 on other occasions for a loan of $10 for a week, and the whole transaction was usurious.

3. Usury (§ 1*)—Transactions Invalid—Determination.

In determining the question of usury, a transaction must be judged by its real character, rather than by the form and color which the parties have seen fit to give it.

[Ed. Note.—For other cases, see Usury, Cent. Dig. § 1; Dec. Dig. § 1.*]

*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

Appeal from Justice Court.

Action by Frederick M. Willson against George T. Fisher. From a judgment rendered by a justice of the peace for plaintiff, defendant appeals on questions of law. Reversed.

E. L. O’Donnell, for appellant.

E. N. Southworth, for respondent.

[1] On the 14th day of November, 1910, the defendant came to the plaintiff’s place of business in the city of Rome, and obtained from him $15. Thereupon he signed a paper which is known in this action as Defendant’s Exhibit 1, the purport of which was to assign wages alleged to be due, in reality to be earned, from defendant’s employer, to the amount of $18.75. At the end of that week and on the 19th of November, 1910, defendant again called upon plaintiff, and paid him at least $8.75, and gave him Defendant’s Exhibit 2, dated November 19th, reciting a consideration of $10, and assigning defendant’s wages to the amount of $12.50. The following week, on November 26th, the defendant again called upon plaintiff, gave him at least $2.50, and signed ánother paper known as Defendant’s Exhibit 3, purporting in consideration of $10 to assign $12.50 of defendant’s wages. The week following another payment

p. 533

of at least $2.50 was made by defendant, and Defendant’s Exhibit 4, dated December 3d, was given. It is in the same form as the prior exhibits, and in consideration of $10 assigns $12.50 of defendant’s wages to plaintiff. The week following, and on December 10, 1910, defendant again called upon plaintiff, paid him at least $2.50, and signed what is known as Plaintiff’s Exhibit A, being a paper in the same form as the preceding exhibits, reciting a consideration of $10 and assigning $12.50 of defendant’s wages to plaintiff. Upon Plaintiff’s Exhibit A suit has been brought, and judgment rendered for the plaintiff. However, it transpires that on January 18, 1911, a paper, a copy of which is known as Exhibit 5, was given by defendant to plaintiff, reciting a consideration of $10, and assigning to the plaintiff $15 of defendant’s wages. Since the 10th of December, when Exhibit A was given, defendant testifies that he has paid $4; and, according to his version, he has paid plaintiff a total of $20.25, notwithstanding which the plaintiff has a judgment for $12.50 and still has the original of Defendant’s Exhibit 5, being an assignment of $15 out of defendant’s wages. According to the plaintiff’s version, he has received from the defendant in excess of what he has advanced to him $16.25. Accepting either the plaintiff’s or defendant’s version, it does not seem right as a matter of simple justice that plaintiff should have out of this original advancement of $15 received back $16.25 (defendant claims $4 more), and still hold an assignment of $15 against the defendant’s wages, and, on top of all that, have a judgment for $12.50 and costs; yet that is exactly the situation as it exists here.

[2] It is the theory and claim of the plaintiff that each and all of the transactions above set forth are separate and distinct and wholly independent of each other; and it is claimed by him that on each and every occasion except the default occurring on Exhibit A the defendant brought to him the full amount of each several assignment, thereby paying up and closing each particular transaction, and then forthwith proceeded to make a new deal to exactly the same effect as the prior one; and it is apparent that the justice must have accepted plaintiff’s view of the transaction. I assume that this court is bound by ■ the findings of the justice upon disputed questions of fact, and that plaintiff’s version of the transaction must be considered the true one, whether this court believes it or not. Murtagh v. Dempsey, 85 App. Div. 204 , 83 N. Y. Supp. 296 ; McRavy v. Barto, 114 App. Div. 262 , 99 N. Y. Supp. 712 ; McDonald v. Dunbar, 114 App. Div. 306 , 99 N. Y. Supp. 768 ; International Tailoring Co. v. Bennett, 113 App. Div. 476 , 99 N. Y. Supp. 438 .

However, even if we were bound to assume that, for purposes which are apparent, this plaintiff went through the form of requiring defendant to bring in and turn over to him the amount of his earnings each week, it seems to me that it was a matter of form only, and a mere subterfuge to enable this plaintiff to extort from the defendant $3.75 for what amounted to a loan of $15 for one week, and $2.50 on at least three occasions for what amounted to a loan of $10 for one week. It is unquestionably true that plaintiff never invested but

p. 534

$15 in this" deal, and he himself admits that he has received back $16.75. His attorney urges, with great plausibility, that his client has discovered a way to defeat the ushry laws; and, if his contentions are to be sustained, his client has indeed discovered a way to defeat, not only the usury laws, but justice as well. It is his contention that, in fact, the court cannot look beyond any one of these instruments, or any one of these transactions; and because a certain form has been gone through with, and a certain pretense carried out, that the court has not either the sense or the" power to look at the transaction as a whole and determine whether they are really part and parcel of the same deal. I do not believe that the law, or the administration of the law, is so futile and impotent.

[3] As was said in Quackenbos v. Sayer, 62 N. Y. 346 :

“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. The shifts and dévices of usurers to evade the statutes against usury have taken every shape and form that the wit of man could devise, hut none has been allowed to prevail."

If we are to decide that this judgment is to stand, it then becomes possible, by the simple subterfuge of taking a new assignment of wages each week, for a man to loan another $15, collect at least $16.25, and then get a judgment for within $2.50 of his original advancement, to say nothing of holding an assignment of wages for the same amount as his original advancement. The whole transaction irresistibly appears to me to be one and the same deal. Exhibits 1 to 5 and Exhibit A all fit in in dates and amounts with the defendant’s version of the transaction, substantiating it in every detail. Each of the exhibits is in the same form as the others, and each eloquently testifies to the truth of the defendant’s contention. It is impossible to see how the justice can reconcile a recovery on the part of the plaintiff, with the admitted existence of Defendant’s Exhibit 5. Plaintiff admits that he has such a paper, and its date is January 18th, upward of a. month after Exhibit 1 upon which he brought his suit was given. It is for $2.50 more than Exhibit 1, and it appears by evidence that it is not disputed, and cannot be, that plaintiff was making claims under it on the employer of defendant and trying to collect it. It appears by the evidence of the witnesses Rosenburg and Barnard that plaintiff in his efforts to collect this postdated obligation, stated to them unequivocally that Fisher only owed him $15, and that is just the amount of Exhibit 5. None of the other exhibits was for that amount. Plaintiff admits that he has such a paper, but says that he never surrendered Exhibit A, and would have us believe that the $5 difference between Exhibit 5 and the amount claimed'to be advanced on Exhibit A was “a voluntary payment” on defendant's part. Incidentally it may be mentioned that Exhibit 5 is the first and only one of all these assignments that had ever been filed with the efnployer; and plaintiff admits that he did not even go through the form of taking back his money and making another advance when Exhibit 5 was given. I do not see how any one can look at this

p. 535

transaction as a whole and escape from the conclusion that it is not only usurious,- but that plaintiff has been fully paid, and more. Plaintiff admits that he “asked for security on his furniture,” and defendant replied that he did not have any. I do not see how the case is to be differentiated from Wilmarth v. Heine, 137 App. Div. 526 , 121 N. Y. Supp. 677 . Plaintiff’s attorney labors diligently to show points of difference, claiming among other things that in the case at bar the wages were actually earned. That is obviously not so; the defendant in the case assigning what he expected to earn for the coming week. It was also in this case, as above noted, canvassed between the parties that there was no “security” except an assignment of wages, as appears from plaintiff’s own testimony.

I therefore reach the conclusion that the judgment of the justice should be reversed, with costs.

Judgment reversed, with costs.

Cases cited

Murtaugh v. Dempsey 85 App. Div. 204 N.Y. App. Div. 1903-06-30 p. 533