Isle of Wight Co. v. Smith — 22 N.Y. St. Rep. 862

Majority

p. 862

The Isle of Wight Company, App’lt, v. Frederick H. Smith, Jr., Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

1. Corporation — Usury—When not interposed as a defense—Laws 1850, chap. 173.

In 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, Held, that the plaintiff being a corporation, could not interpose the defense of usury in any action to enforce the payment of the loan.

3. Same—When set up affirmatively, ■

Nor can the same facts, set up in a complaint in an action for affirmative relief, afford the plaintiff greater relief.

Appeal from an order of a justice, made at Queens . special term, sustaining a demurrer to the complaint.

Thomas V. Cator (Frederick Eder, of counsel), for app’lt; Herman Kobbe (Thaddeus D. Kenneson, of counsel), for resp’t.

—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

p. 863

defense of usury in any action brought to enforce the payment of the loan. Chapter 172, Laws of 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. Southern Life Ins. Co. v. Packer, 17 N. Y., 51 ; Leavitt v. Curtis, 15 id., 9.

The judgment appealed from should, therefore, be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.