Majority
p. 833Jacob H. Tallman, Resp’t, v. Daniel J. Sprague, App’lt. (New York Superior Court, General Term, Filed March 14, 1892.)
Headnote
1. Usury—Presumption.The mere fact that a note was renewed at maturity by one for a greater amount does not necessarily involve usury, especially where the form of the statement on the suoject intimates that there are other facts not stated, which would be relevant.
2. Default—Payment.
A judgment by default will not be opened on the ground of partial payment upon an affidavit showing the giving of a note for one-half of that m suit. If given, this would not have been a payment.
Appeal by defendant from order denying his motion to open a judgment taken for want of answer.
J. Noble Hayes, for app’lt; Michael Jacobs, for resp’t.
The defendant asked that the default be opened that he might mgke the defense of usury. The affidavits were-too vague and uncertain on this subject to permit it to be held that usury was shown. The mere facts of. giving a note and then,, at its maturity, another note for a greater amount does not necessarily involve usury,' especially when the form of the statement-on the subject intimates that there are other facts not stated which would be relevant and should be considered before holding that there was usury.
p. 834
The defendant also maintained that he had a defense of payment or partial payment. As to the first the affidavits did not .support it. The second was said to be the giving of the defendant’s note for about thfe half of the amount of the note in action. If given, this would not have been a payment. The defendant’s affidavits left it doubtful as to whether it was ever given to plaintiff. The affidavits of the plaintiff are to the effect that it never was.
The court would have been justified in denying the motion .absolutely.
Order affirmed, with ten dollars costs.
Sedgwick, Ch. J.; G-ildersleeve and Dugro, JJ., concur.