Matthiessen v. Kohlsat — 40 N.Y. St. Rep. 227

Majority

p. 227

Franz O. Matthiessen et al., Ex’rs, Resp’ts v. John W. Kohlsat, App’lt.

(New York Superior Court, General Term,

Filed October 10, 1891.)

Headnote

Usury—When defense of not available.

Where the only defense pleaded is a general denial, and usury does not conclusively appear as matter of law from the evidence adduced by the plaintiff, the defense of usury is not available to defendant.

Appeal by defendant from a judgment entered upon a verdict directed by the court in favor of the plaintiffs.

Burnett & Whitney, for app’lt; Martin & Smith, for resp’ts.

The appeal is from the judgment only, and consequently only questions of law can be reviewed. At the trial no claim was made ¡.hat there was any question for the jury, nor was there a fatal variance between the proof and the allegations of the complaint. The action was brought to recover $3,000, being the amount of a loan made to defendant by the plaintiffs’ testator, and the complaint alleged the making of the said loans, an 1 a promise on the part of the defendant to repay the $3,000. The proof established the allegations of the complaint, and incidentally some evidence was introduced from which the jury, if the issue had been made, might have found that the defendant, on obtaining the loan, had further agreed to pay a usurious rate of interest. But the only defense pleaded was a general denial, and usury did not conclusively appear as matter of law from the evidence adduced by the plaintiff. Under the circumstances stated, the defense of usury was not available to the defendant. Millbank v. Jones, 28 N. E. Rep., 31 ; 88 N. Y. State Rep., 910, and cases there cited.

The record discloses no error, and the judgment must, therefore,, be affirmed, with costs.

Freedman, Dugro and Gildersleeve, JJ., concur.