Tyng v. . Commercial Warehouse Co.

*313 Johnson, J. The plaintiff had judgment on the report of the referee. At General Term this judgment was reversed and a new trial ordered, upon a question of law only, as we are bound to hold; the reversal not appearing, by the judgment, to have been granted on the facts. The inquiry before us is, therefore, whether the referee gave judgment contrary to the law. Ho question appears to have been made during the trial in respect to the production of evidence founded on any notion of variance or insufficiency of allegation on the part of the plaintiff. Had any such objection been made it might have been obviated by amendment in some form or upon some terms, under the ample powers of amendment conferred by the Code of Procedure. It would, therefore, be highly unjust, as well as unsupported by authority, to shut out from consideration the case, as proved, by reason of defects in the statements of the complaint. Indeed, it is difficult to conceive of a case in which, after a trial and decision of the controversy, as appearing on the proofs, when no question has been made during the trial in respect to their relevancy under the pleadings, it would be the duty of a court, or within its rightful authority to deprive the party of his recovery on the ground of incompleteness or imperfection of the pleadings. These principles we regard as entirely settled. (Catlin v. Gunter, 11 N. Y., 368; Miller v. Schuyler, 20 id., 524; McKnight v. Devlin, 52 id., 399.) The plaintiff has, moreover, stated a case which makes out usury, upon the facts which he has set forth, as matter of law. For usury consists in the taking or reserving upon a loan of money interest at a greater rate than seven per cent per annum. If this results from mistake or accident it is not usury; otherwise, it is. (Fiedler v. Darrin, 50 N. Y., 443.) The plaintiff avers a loan of money, in currency, by the defendant to him, upon an agreement that he should pay the defendant, for the loan, one-half of one per cent per month, in currency, and seven per cent per annum in gold. Leaving-out of view the question as to the interest being required to be paid in gold, there is a clear excess of interest over seven *314 per cent per annum of one-half of one per cent per month. Even a contingent benefit beyond seven per cent per annum renders a contract usurious. (Browne v. Vredenburgh, 43 N. Y., 195.) Of course, the original transaction having been usurious, it is needless to trace the matter through the several renewals. None of them purged the loan of its original vice. If there could be any doubt as to the usurious character of the original loan, that doubt has been settled against the defendant by the finding of the referee, which, as it is supported at least by some evidence (I think by conclusive evidence), cannot now be reviewed. In any aspect of the case I do not conceive that the provisions of the charter of the defendant in respect to commissions, can have any bearing upon the question. Its language would not be construed to repeal the usury laws in the defendant’s favor, even if the language employed seemed capable of that construction. Corporate powers are conferred in subordination to the general laws of the land, and are so to be construed. (People v. Utica Ins. Co., 15 J. R., 358.) Its power to charge commissions will not be deemed greater than would belong to an individual doing the same business, as he might, without special authority. In Merchants’ Ex. Nat. Bank v. Commercial Warehouse Co. (49 N. Y., 635) it was held that the question whether commissions charged, professedly under the charter, were usurious or not, was a question of fact. Under that view the referee has found against the defendant in respect to the several renewals of the original loan; and in so finding he is supported by all the proof. Indeed, were the question not one of usury, in respect to which, in order to avoid the sever,e consequences which by law follow, courts are often thought to be willing not to see, the case would scarcely require to be stated, so clear is the fact against the defendant. In respect to the damages there is no legal ground of complaint. The rule of giving the highest value which has been lately disapproved and overthrown (Baker v. Drake, 53 N. Y., 211) was not applied. The referee, upon evidence *315 as to the value at the time when the bonds in question were finally disposed of by the defendant, gave that amount, with interest. We are of opinion, upon the whole case, that there was no error in law in the referee’s report, and that the judgment upon it ought not to have been reversed. The order of General Term granting a new trial should be reversed, and judgment on report of referee affirmed, with costs. All concur. Order reversed, and judgment accordingly.