Haughwout v. . Garrison

Allen, J. The referee has not found, and was not requested to find that the $500 paid at the time of the. settlement of the plaintiffs’ claim against the defendant Smith, and the withdrawal of the attachment from his property, and the discontinuance of the legal proceedings for the collection of the demand, was paid or received as a consideration for the forbearance, and giving day of payment for . that portion of the debt represented by the bonds in suit, or that it was the intent of the plaintiffs to exact and receive usurious interest. The $500 was asked and received as a part of the expenses incurred by the creditors in the prosecution of their action, and the attachment proceedings in Vermont. They had a right to demand indemnity for the expenses incurred by them upon a discontinuance of these proceedings at the request of the debtor, and if the sum demanded was but an indemnity for those expenses, there was no usury. (Thurston v. Cornell, 38 N. Y., 281; Harger v. McCullough, 2 Den., 119; Brooks v. Avery, 4 Comst., 226.) If the amount claimed and paid was not a part of such expenditures, but was demanded as a cover and device to secure a greater interest than that allowed by law, or a compensation for giving day of payment in excess of the lawful rate of interest, the fact should have been proved, and found by the referee. The affirmative of the issue upon the alleged usury was with the defence, and if the transaction was equivocal, the defendant should have given evidence of facts to show the alleged illegal intent, and had the fact *343 found by the referee. In Fiedler v. Darrin (50 N. Y., 437), the usurious intent was found by the referee upon sufficient evidence. Whether the payment of more than the legal rate of interest is usury, depends on the particular facts, and the intention of the parties, and these are, in equivocal or doubtful cases, questions for the trial court, and cannot be adjudged in the first instance by this court. There is no evidence to show that the demand was illegal or unreasonable, or that there was an intent under the guise of indemnity for legal expenses to evade the statute of usury, and there is no request to the referee to find the fact, or any finding of fact by him upon which the question of usury can be raised upon this record. The judgment must be affirmed. All concur. Judgment affirmed.