Le Baron v. Van Brunt ( 1880 )

Van Hoesen, J.

I concur with the chief justice in the

opinion he has expressed as to the facts and the law. In this case it appears that Van Brunt made the note in suit in New York, and that he himself used it here, by having it discounted at a usurious rate by Ahearn. It is true that the note was made payable in New Jersey, where Van Brunt resided, but that does not, as the marine court erroneously decided, require that the validity of the note should be determined by the usury laws of \New Jersey. In Dickinson v. Edwards (77 N. Y. 573), the law is said to bé that if the maker of a note sends it, or knowingly permits it to be sent, to another state, to be discounted, its validity will be determined by the usury laws of the place of discount, and not by the law of the state in which it is payable. This is not in accord with the decision in Clayes v. Hooker (4 Hun, 231), but that case must be considered as discredited by Dickinson v. Edwards. Adopting the rule laid down in Tilden v. Blair (21 Wall. 241), the court of appeals say that where the intention of the maker is that the note shall first be negotiated in a state other than the state of his residence, it must be presumed that he desired to make a contract in accordance with its laws; and the naming of his residence as the place of payment of the note must be regarded as an incidental circumstance, intended to help the negotiation, o°r to promote the convenience of the maker, and not to form an essential part of the contract.

To the same effect is Wayne County Savings Bank v. Low (6 Abb. N. C. 76).

In Hildreth v. Shepard (65 Barb. 271), Judge Ingraham said : “ When the note is made in one state, negotiated and sold in that state at a rate of interest allowed by the laws of the state where sold, then the same is to be governed by the laws of that state, and not of the state where it is payable.” The . note in suit was made and dated in Yew York, and there sold. Tested by the rule laid down by Judge Ingraham, the note was governed by the usury laws of Yew York, and not by the usury laws of Yew Jersey.

The law is stated in nearly the same language in Wait’s Law of Action and Defenses, vol. 7, p. 623, where the following cases are cited: National Benk v. Smoot (MacArthur, 371); Providence Savings Bank v. Frost (8 Ben. 293; affirmed, 14 Blatchf. 233).

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

j. F, Daly, J., concurred.

Judgment reversed, and new trial ordered, with costs to abide event,