De Blasi v. Taddonio — 142 N.Y.S. 271

Majority

p. 271

DE BLASI v. TADDONIO et al.

(Supreme Court, Appellate Term, First Department.

June 17, 1913.)

Headnote

Money Lent (§ 7^[1] )—Evidence—Weight and Sufficiency.

In an action to recover a loan of $100 in which defendants testified that plaintiff had for each of three years received $14 interest, but in which plaintiff claimed to have received only some $8 for disbursements

p. 272

a judgment for plaintiff for $68 must be set aside, as not sustained by the evidence.

[Ed. Note.—For other cases, see Money Lent, Cent. Dig. §§ 11-13; Dec. Dig. § 7.*]

Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by Emidio de Blasi against Rosina Taddonio and another. From a judgment of the Municipal Court in favor of the plaintiff after a trial before a judge without a jury, defendants appeal. Reversed and new trial granted.

Argued May term, 1913, before LEHMAN, BIJUR, and WHITAKER, JJ.

Nicholas Selvaggi, of New York City, for appellants.

Albert H. Vitale, of New York City, for respondent.

Plaintiff sues to recover $100, loaned to defendants. The defense is usury.

Defendants and their father and mother all testify that the plaintiff demanded and received at the end of each of three years $14 interest. Plaintiff claims, as I read the testimony, never to have either asked or received any interest, but only some $8 for disbursements which he had incurred. The judgment was for $68. If the learned trial judge believed the plaintiff, the judgment should have been for $100 at least; and if the defendants,/ to the effect that there had been usury, then the judgment should have been for the defendants. -

Judgment reversed, on the authority of Goldberg v. Blaine (Sup.) 137 N. Y. Supp. 893 , and a new trial granted, with costs to appellants to abide the event. All concur.