Newell v. . Doty , 33 N.Y. 83 ( 1865 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] There is nothing in the plaintiff's point, that because the defendants did not deny the allegations in the complaint, of the making of the note, and delivering it to Brown Brothers, the payees who indorsed it to the plaintiff; and because they made no general or specific denial of any allegation in the complaint, that this is such an admission of the cause of action, that a judgment contrary to the admission is erroneous. The 149th section of the Code requires such a denial only, of the matters alleged, as the defendant means to controvert. The defendants could not truthfully controvert or deny those allegations; and there is no such unreasonable provision in the Code as to require the party to answer a pleading with a falsehood. The 150th section allows the defendant to set forth as many defenses as he may have. Usury is a good legal defense, and it may be interposed without denying the contract set up. It is much more commonly done by admitting the contract declared upon, and then alleging that it was corruptly made. This was sufficiently done in the second answer in this case. At all events, it is sufficient in form, after judgment, upon the report of the referee, upon the facts found by him.

It is not in accordance with the practice of this court to review exceptions to the report of a referee expressed in such general terms as those in this case. They point to no specific error, but seem to proceed upon a kind of chance experiment, upon the theory, that not being able at the time to point out a specific objection, they may at some future day be able to discover one which can be introduced under a general objection, or, perhaps, and more probably, in the indulgence of a hope that the court of review may be able to find an objection for them.

The decisions of the referee made on the trial, and there excepted to, are specific; they can and will, of course, be reviewed, but the exceptions filed after the report, stating in general terms that "the plaintiff excepts to each and every one of the decisions and rulings of the referee against the plaintiff on the trial of this action, severally, separately and distinctively," amount to nothing, and cannot be reviewed. So, too, the exception that "the plaintiff excepts to each and every one of the referee's findings of fact, severally, separately and distinctively, found and stated in his report, and alleges that his findings on each and every one of the questions of fact submitted by him is unsupported by and contrary to the evidence," points to no specific error, and such exception is entirely useless verbiage, if inserted in a case. If it calls upon this court to perform any duty in regard to it, it is to try the case over, upon the facts, like a case in equity upon pleadings and proofs. This court are called upon to perform no such duty. This has been so often repeated in their adjudications that at this day it amounts to a reflection upon the qualification of counsel who comes here to ask relief upon a case so unskillfully prepared and presented. (Jones v. Osgood, 2 Seld., 233; Caldwell v.Murphy, 1 Kern., 416; Dunkel v. Wiles, id., 420; Lansing v. Wiswall, 5 Denio, 213.)

We proceed, then, to review the exceptions taken to the rulings of the referee on the trial.

When the defendant offered evidence in support of his defense of usury, it was objected by the plaintiff, that, having admitted the cause of action, no legal defense had been set up. This objection, as we have already held, was not good, and was correctly overruled by the referee.

When the plaintiff advanced the money to "Brown Brothers" for the note in suit, he lacked a trifling amount, to wit, $13.75, for which amount he gave Brown Brothers a note. This note Brown Brothers lost, or mislaid, and the name of the payee therein, and the time when payable, or how payable, could not be recollected — it had never been delivered to defendants, nor had they been informed by Brown Brothers of its existence, and the referee finds the giving of this note was a mere device to avoid the statute. The plaintiff offered to prove that the plaintiff, the maker of the note, was responsible. The evidence was objected to by defendants, and excluded by the referee. There were dealings between Brown Brothers and defendants, and whether Brown Brothers accepted this note from plaintiff as evidence of cash loaned to plaintiff, or how otherwise, does not appear, and it is entirely immaterial, as it did not change the character of the contract; the defendants are not shown to have any connection with it, and whether the plaintiff was able to pay it or not was not material, and the exclusion of the evidence was not error.

There was evidence in the case that Brown Brothers had a former note of the defendants, exceeding $700, then about becoming due, which they had negotiated in New York, and that the avails of the note in suit were, in part, to be applied to take up the larger one. One of the firm of Brown Brothers was a witness, and had testified at some length, giving details of their action and agency in the negotiation of the note in suit. The plaintiff, on cross-examination of Brown, asked him, "Would you have indorsed this note if you had not had their note and negotiated it?" The defendant objected to this as immaterial, and that it called for the operation of the mind of the witness, and not for facts, and the referee sustained the objection. I am not able to see any error in this ruling.

This completes the review of the objections taken on the trial. In carefully looking at the whole case, the report of the referee can be sustained upon the evidence in each of his findings of fact. This being assumed to be true, the conclusion of law is right. If the plaintiff knew, as the evidence justifies the conclusion, that he was discounting this note, and not buying a previously negotiated business note, it presents a shameless case of the violation of the statute concerning usury. The judgment is right, and should be affirmed.