Kurz v. Fish — 33 N.Y. St. Rep. 674

Majority

p. 674

Ida C. Kurz, Resp’t, v. Henry Fish, Impl’d, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 23, 1890.)

Headnote

1. Bills and notes—Bohemian oat contract—'Usury.

Defendant purchased Bohemian oats, and gave liis note therefor. In

p. 675

an action on said note, Held, that the contract was not void under the betting and gaming act, and that the transaction was in no sense a borrowing or lending of money so as to render a defense of usury available.

2. Same—Venue.

The note was signed and delivered in Oswego county,and was purchased by plaintiff in Monroe county. Motion to change the place of trial to Oswego county was denied on plaintiff giving a stipulation to give no evidence of what occurred in Oswego county. Plaintiff gave such stipulation, which stated that she depended wholly on the fact that she was a bona, fide holder. Held, that as all the witnesses on that question lived in Monroe county the order was proper.

Appeal by the defendant Fish from an order denying a motion to change the place of trial from Monroe to Oswego county for the convenience of witnesses.

Piper & Bice, for app’lt; Seed & Schutt, for resp’t

The action was brought upon a promissory note given for “ Bohemian Oats." The answer admits the execution of the note, but alleges that the same was obtained by fraud; that it was void under the betting and gaming act; also as against public policy, and that it was usurious. The note was made in Yates county.

Watson v. Blossom, 18 N. Y. State Rep., 726, holds in substance that such a contract is not void. The answer alleges usury. It satisfactorily appears by the answer that the defense of usury is not available. National Bank of Gloversville v. Place, 15 Hun, 564 ; Billington v. Wagoner, 33 N. Y., 31 .

The transaction set up was in no sense a borrowing or lending of money. The note was given in consideration of oats sold at a fictitious price, and a' bond or agreement to the effect that the party taking the note would buy from the maker a much larger quantity at the same price, and thus to secure to him large profits.

It may have been a fraudulent, swindling contrivance, but it was in no sense a borrowing or lending of money, so that the substantial questions upon the trial will be whether the note was obtained by fraud, and whether the plaintiff is'a bona fide holder.

A motion was made at the Monroe special term in March, 1889, before Justice Rumsey, to change the place of trial from Monroe to Oswego county. The court decided as follows:

“ It is ordered that the said motion be and the same hereby is denied, with ten dollars costs to abide the event of the action, by the plaintiff filing a stipulation to give no evidence of what occurred in the county of Oswego, where the note in suit was signed and delivered.

“Dated April 4,1890.”

In pursuance of this order the following stipulation was made:

“ It is hereby stipulated by and on the part of the plaintiff herein, that she depends solely upon the fact that she is a bona fide holder of said note before maturity, forfull value and without notice of the equities between defendant and the payee of said note, and that the plaintiff will not give any evidence of any of the facts which are

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alleged in the defendant’s answer as occurring in the county of Oswego, N. Y. ,

“ Dated April 2, 1890.

“Reed & Schutt,

“ Att'ys for Pl'ff,

“ 807 and 808 Wilder Building, Rochester, N. Y.”

The order and stipulation clearly show that it must be assumed on the trial that the plaintiff cannot recover unless she shows that she is a bona fide holder of the note. On that question all the witnesses live in the county of Monroe.

It follows that the order must be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Dwight, P. J., and Macomber, J., concur.