p. 359William A. Vredenburgh, Respt, v. Albert T. Pall, App’lt.(Brooklyn City Court, General Term,An exeeption to a refusal to charge a request which, embodying a sound proposition of law, is not applicable to the issues made in the action, is not tenable.
Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial on the minutes.
Action upon a promissory note made by the defendant to the order of one Dunn, and by him indorsed to the plaintiff. The answer set up the payment of usurious interest in pursuance of an agreement between the plaintiff and defendant.
At the close of the charge the defendant requested the court to charge that if the jury believed that the note sued upon was given in renewal of a note which was given by the defendant Pall to Dunn without consideration, whether for the purpose of having it discounted by the plaintiff or not, and the plaintiff did discount it, and charged Dunn for such discount a greater rate than six per cent, per year, then the note had no inception until such discount, and it was usurious and void; also, that if the jury believed that the note in suit was given in renewal of a note for $150, given by the defendant to Dunn, without consideration, which Dunn sold to plaintiff for $135, then both notes were void for usury; also, that even if the jury believed that Dunn told the plaintiff the note was a valid note in his hands against defendant, and that plaintiff believed it and relied upon Dunn’s statement, nevertheless, the note was usurious and void if plaintiff discounted it at a greater rate than six per cent, per year, and it was, in fact, without consideration; all of which the court refused to charge except as already charged.
Archibald G. Shenstone, for app’lt; Klein & Bendich, for resp’t.
This action was brought to recover the amount of a certain demand note made by the defendant to the order of one Dunn, and by him indorsed and transferred to plaintiff. Defendant admitted the making of the note in suit, but alleged that previous to the making thereof he had made a certain other note for the accommodation of said Dunn, which plaintiff had
p. 360discounted at a usurious rate under a corrupt agreement with said Dunn so to do; that when said note matured plaintiff agreed with defendant to extend the time for the payment thereof at a usurious rate of interest, and that then the note in suit was given and the usurious interest was paid in cash in pursuance of such agreement; two further extensions of the time of the payment of the note in suit were also alleged as the result of other usurious-agreements between plaintiff and defendant.
Plaintiff had a verdict, and this appeal comes before us on exceptions taken to the refusal of the learned trial judge to charge certain requests submitted by the learned counsel for the defendant other than as already charged.
We are of the .opinion that the exceptions are not tenable, for,, while they may embody sound propositions of law, they were not applicable to the issues made in this action other than’to extent that they had already been charged by the learned trial judge. Defendant had the affirmative at the trial, and the contention sought to be maintained by him was that plaintiff had made an agreement with the defendant under which plaintiff had demanded and received a -greater sum than the legal rate of interest for the forbearance of his claim. This was denied by plaintiff and the-case was tried and submitted to the jury on the issue thus made,, on a charge which clearly defined the law which the jury was to apply to the facts as it found them to be. Plaintiff obtained a verdict in his favor, and we can .see no reason for disturbing it.