Hyperlawhypertext legal database Isle of Wight Co. v. Smith 4 N.Y.S. 73

← Cases

Isle of Wight Co. v. Smith

4 N.Y.S. 73 Court N.Y. Gen. Term Decision date 1889-02-11 English

Delivered by Dykman, J.

Contents

Majority

p. 73
Isle of Wight Co. v. Smith.
(Supreme Court, General Term, Second Department.
February 11, 1889.)

Headnote

Corporations—Cancellation of Notes—Usury.
In New York a corporation cannot maintain an action to cancel securities for a loan to it on the ground of usury; Laws N. Y. 1850, c. 172, providing that a corporation cannot set up the defense of usury in an action to enforce the payment of the loan.
Appeal from special term, Queens county.
Action by the Isle of Wight Co. against Frederick H. Smith, Jr. Plaintiff appeals from an order sustaining a demurrer to the complaint.
Argued before Dykman and Pbatt, JJ.
Thomas V. Oator, for appellant. H. Ilobbe, for respondent.

This is an action brought to procure the cancellation and surrender of certain securities for the payment of a usurious loan made by the defendant to the plaintiff. The defendant demurred to the complaint, and had judgment in his favor in the court below, from which the plaintiff has appealed. We find no principle which will justify a recovery in this action. The plaintiff is a corporation, and could not interpose the defense of usury in any action brought to enforce the payment of the loan. Chapter 172, Laws 1850. As, therefore, the interposition of such a defense would be unsuccessful, it follows necessarily that the same facts set up'in a complaint in an action for affirmative relief can afford the plaintiff no greater relief. It cannot accomplish by indirection what it cannot do directly. Moreover, we think the question has been adjudicated in this state, and decided against the contention of the plaintiff. Insurance Co. v. Packer, 17 N. Y. 51 : Leavitt v. Curtis, 15 N. Y. 9 . The judgment appealed from should therefore be affirmed, with costs. All concur.

Cases cited