p. 360(Supreme Court, General Term, Fifth Department.Headnote
Usury as a Defense—Pleading—Counter-Claim.Defendants in an action on a note pleaded usury, and introduced evidence that certain sums in excess of lawful interest had been paid to plaintiff for extension of the time of payment, but did not set up these payments as a counter-claim. Held, under 1 Rev. St. N. Y. p. 772; § 8, authorizing an action for payments of interest in excess of the lawful rate, that defendants, having failed to set up such counterclaim, could not have the payments applied to reduce the debt.
Appeal from Erie county court.
Action by Edward H. Pixley against John 0. Ingram and another. A motion for a new trial was granted after a verdict for plaintiff, and plaintiff appeals.
Argued before Barker, P. J., and Dwight and Macomber, J J.George Wing, for appellant. Fitch & Braulein, for respondents.
This action was brought upon two promissory notes made by the respondent John C. Ingram, and indorsed by the respondent Margaret Ingram, payable to the order of one Albert Church, who transferred the same to the plaintiff. The defense was usury. Evidence of the taint of usury was of a conflicting nature, and the county judge submitted the question fairly to the jury, who have rendered a verdict for the plaintiff, for the amount remaining unpaid thereon, in the sum of $105.50. The learned county judge has granted a new trial upon the ground that, under the undisputed testimony in the case, there have been sundry payments reducing the amount due on the first note to $9.05, and the amount due on the second note to $35.56, making due only $44.61 in all. These several items of so-called “payments,” which are thus said to be allowable to the defendants, are the precise items of usury which it was alleged had been taken by the plaintiff for repeated extensions of time of payment. There is no evidence that any one of these items was intended by the defendants to be a payment applicable to the reduction qf the principal of either of these two notes. They were severally made, as stated before, not by wa.y of diminishing the amount unpaid upon the paper, but as “consideration,” so called, for the omission of the plaintiff to insist upon immediate payment of the original notes. The jury having decided in favor of the plaintiff upon the question of usury growing out of these several pay
p. 361ments, we do not think it was competent for the court, under the pleadings, to hold that the amount of the plaintiff’s claim should be reduced by the sum total of such payments. The statute (1 Rev. St. p. 772, § 3) permits a party who, for any loan or forbearance of money, shall pay or deliver any greater sum than is allowed by law, to recover in an action against the person who shall have taken or received the same over and above the legal rate, provided such action shall be brought within one year after such payment. Under this statute, it was competent for the defendants to set up as a counter-claim these payments; and, had they done so, the amount found due upon the notes by the jury would have been further reduced by the several sums which were shown to have been paid within a year, (or within any time, for that mátter,) unless the short statute of limitations had been pleaded by the plaintiff in a reply to such counter-claim. There being no counter-claim set up in the answer, the jury would not have been warranted in finding that these usurious payments of money for the forbearance of collection of the loan were applicable to the principal sum remaining unpaid. We therefore think that the order of the county court granting a new trial should be reversed, with costs, and judgment ordered for the plaintiff upon the verdict. All concur.