Fox v. Miller — 46 N.Y.S. 837

Majority

p. 837

FOX v. MILLER.

(Supreme Court, Appellate Division, First Department.

August 4, 1897.)

Headnote

1. Discovery—Usury.

Where defendant is to rely on a defense of usury, an order will be granted for the examination of plaintiff, for the purpose of disclosing facts, not otherwise accessible to defendant, which are within the especial knowledge of plaintiff, and which defendant must plead to establish his defense.

2. Usury—When a Defense.

An agreement to receive more than legal interest for a loan, though not constituting the crime of usury, might be a defense in an action to recover the money loaned.

Appeal from special term, New York county.

Action by Samuel Fox against Warner Miller upon a promissory note. An order having been granted vacating an order for examination of plaintiff, defendant appeals.

Reversed.

Argued before RUMSEY. WILLIAMS, PATTERSON, O’BRIEN, and PARKER, JJ.

F. .Walling, for appellant.

E. L. Nathan, for respondent.

The order for the examination of the plaintiff was properly granted. The defendant', by his affidavit, showed that the note was diverted by Brandreth, and that the defense of usury would be relied upon, and also that he was ignorant of the details of the transaction, and of the facts necessary to be pleaded in connection with that defense. The plaintiff objected to the order, on the ground that the examination would compel the disclosure of facts which would constitute a criminal offense. There is nothing in the record before us to show that the crime of usury has been committed; that anything was received by the plaintiff for the loan or forbearance of any money; or that any facts existed which would render the plaintiff liable to criminal prosecution under the statute. The defense of usury could be based alone upon a corrupt agreement to receive more than 6 per cent, for the loan or forbearance of money, and the proof of such an agreement would be sufficient to establish that defense. The affidavits upon which the order for examination was granted show that the defendant has no other means of ascertaining the facts necessary to be pleaded by him in setting up the defense of usury than by an examination of the plaintiff, to elicit those facts which are especially within his knowledge.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.