In re Valentine — 45 N.Y. St. Rep. 758

Majority

p. 758

In the Matter of Catherine E. Valentine, Deceased.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

Usury.

. The claimant loaned money to decedent and took back instruments by the terms of which interest was to be paid at the rate of eight per cent until the loans were paid. Held, that even if that rate was originally inserted because of a loss of two per cent upon drawing the money from the savings bank, yet as the agreement as to interest ran with the contract and extended beyond the period which would indemnify claimant for such loss, it was usurious.

Appeal by Maggie Gillespie from order of the special term partly overruling and partly confirming the referee’s report.

W. G. Low, for app’lt; W. G. Roe, for resp’t.

The obligations upon which this claim is sought to be enforced show a loan of money by the plaintiff to the defendant’s intestate for which interest at eight per cent was contracted to be paid.

The testimony before the referee .fails to show that these instruments did not correctly state the actual agreement between the parties, and as the interest to be paid was in exdess of the legal interest the obligations are void. The testimony of the witness Richardt that was stricken out failed to show any other or different agreement, and if considered by the referee could not have changed the force or legal effect of the obligations.

By the terms of the instruments interest was to run at the rate of eight per cent until the loans were paid. Therefore even if the eight per cent was originally inserted because of the loss of two per cent interest upon the drawing of the money from the savings bank, yet the eight per cent agreement ran with .the contract and extended to a period far beyond that which would indemnify the plaintiff for the loss of the two per cent in the drawing of the money from the savings bank. The usurious character of the transaction therefore seems to be clearly established considering all the evidence which was admitted before the referee whether stricken out subsequently or not

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.