Scheidig v. Bemis , 34 N.Y. St. Rep. 992 ( 1890 )

Learned, P. J.

The defendants must make out their title to relief on the ground of usury by allegation and proof. Bank v. Boynton, 105 N. Y. 656, 11 N. E. Rep. 837. They cannot assert that the complaint in this case shows-no cause of action; because the note is not void for usury unless there was a loan or forbearance of money, goods, or things in action. 1 Rev. St. marg. p. 772, § 5. If real.estate is soíd, and the purchase-money mortgage is antedated, this is not usurious. Frank v. Davis, 6 N. Y. Supp. 144. The cases-cited by defendants, holding that obligations which on their face appeared to-be made by a married woman showed no cause of action, do not apply. This-note does show a cause of action, unless it should appear that the consideration therefor was such that more than 6 per cent, interest was agreed upon. I3ut the note itself does not show what was the consideration for which it. was given. It was undoubtedly competent for the plaintiff to show, if it became necessary to do so, the consideration of the note, so as to disprove any usury which might be asserted by defendants.

But, furthermore, the note is not “prima facie usurious.” - This is distinctly laid down in Marvin v. Feeter, 8 Wend. 533. The defense there was-twofold—First. That the original notes for which the notes in suit were-given were usurious. Those original notes, bearing date March 17, 1828, bore interest from November 24,1827, and it was claimed that therefore they were usurious. The court said: “If the notes were to be considered evidence of money lent at tlieir date, there would perhaps be more than 7 percent. reserved. But it is well known that notes are given for property sold, and for other business transactions, as well as for money lent. If a merchant sells goods upon credit, and six months after the sale the purchaser gives his-note bearing interest from the time of the sale, the transaction is an honest one. ” To the same effect is the language of the court in Ewing v. Howard, 7 Wall. 505. We cannot learn from the note, itself what was the consideration for which the defendants gave it; whether they received goods or money, or, if money, how much. Until that is shown, the note does not show that, it is usurious. A merchant selling goods may charge for credit more than, the legal rate of interest, and the transaction will not he usurious. J udgment. reversed, referee discharged, new trial granted, costs to abide the event.