Rosenstein v. Fox

This action was brought to recover the sunl of $3,'000 with interest thereon from May 27th, ,1884, on a promissory note made, executed and delivered by the defendant to the plaintiff. The answer consist first of a general denial, second that the note was made for the accommodation of one Nathan Bernstine and was given in renewal of a previous usurious note which bore usurious interest at the rate of seventeen and three-twentieths per cent, per annum; third, that the plaintiff was not the real party in interest and was not a bona fide holder of the note because before maturity the note was paid to Nathan Bernstine and Nathan Bernstine held the note and acknowledged himself the possessor thereof before maturity and because the plaintiff made no claim against defendant until the commencement of the action; and fourth, that the defendant paid the note to Nathan Bernstine. The plaintiff at the close of the case moved for the direction of a verdict for the full amount claimed, which was denied, to which ruling he duly excepted.. In order to determine whether this ruling was right or not, as the appellant himself contends, a review of the evidence is necessary. But there is no certificate in the case showing that it contains all the evidence. Under the firmly established rule of this court and the court of appeals, there can therefore be no review of any such question; Upington v. Pooler, 47 St. Rep. 30 ; Hyman v. Freedman, 45 Id. 636 ; Claflin v. Flack, 36 Id. 728; Howe v. Woolsey, 7 Misc. 33 ; 57 St. Rep.

A'i examination of the appellant’s exceptions to portions of the charge and to the admission of certain evidence fails to disclose any errors chiefly because, with a few exceptions to be considered later, he relies upon alleged deficiencies in the evidence as a basis for demonstrating the errors cannot be considered as the case is presented for the reason before stated. Such for instance are the exceptions to the trial judge’s instructing the jury that they were to determine the question of payment; or whether or not the plaintiff was a bona fide holder for value; or whether or not there had been usury. Such also are the exceptions to the admission of testimony as to payments of usurious interest upon the original note (upon the ground that the defendant must first show that the plaintiff was not a bona fide holder for value before maturity); also the objection that there was no evidence of Bernstine’s agency to make the alleged usurious payments of interest; and the objection that it had not been shown that such payments were made in pursuance of an agreement and not as a gratuity. Other objections which are unavailing for the same reason need not be enumerated. Wc do not think that the admission of defendant’s testimony as to the rate per annum of interest which he had paid upon the old note presents reversible error. True it was in one sense a conclusion but it was immediately preceded by a statement of the amounts and dates of payments of interest, and the successive notes showing the principal sum and the date from which interest ran were before the jury. Just here it might be observed as showing the case presented does not in fact contain all the evidence given at the trial, that we have failed to find the note of October 27th printed in the case or referred to in the index ; but from the reference to it at folio 41 as “Exhibit 2,” it is clear that it was in evidence. The jury consequently had all the data for making the mathematical computation, and it cannot be said that allowing the defendant to give the result of his calculation is sufficient ground for reversal. Besides, from our own computation based upon the payments, principal and dates as testified to by the defendant, supplemented and corroborated by in-information gathered 'from other portions of the case, it appears that his answer “very nearly eighteen per cent.” was substantially correct. The exact rate was immaterial provided it exceeded the legal rate, which it certainly did. The exception to the trial judge’s interpretation of the pleadings in his charge, presents no error. The appellant had enjoyed the privilege of opening and closing and the fact that the judge gave the pleadings a construction under which the appellant would not have been entitled to an advantage already enjoyed, was certainly no injury to him. No burden of proof was improperly placed upon him, as is shown by other portions of the charge, nor is any claim made that such was the case. In Clark v. Smith, 9 Misc. 164 ; 60 St. Rep. 634 , we discussed at length such a situaron, and nothing further need here be said. Auerbach v. Peetsch, 44 St. Rep. 494 , relied upon by the appellant,