Oeser & Co. v. Behrend

Shearn, J. In an. action on a promissory note brought by a bona fide holder in due course for value before maturity the defendants, the makers of the note, plead usury. It has been twice held by this court that the defense of usury is not available in such a case, under section 96 of the Negotiable Instruments Law (Laws of 1897, chap. 612). Klar v. Kostiuk, 65 Misc. Rep. 199; Emanuel v. Misicki, 149 N. Y. Supp. 905. See, also, Crusins v. Seigman, 81 Misc. Rep. 367. It is especially important that in a court constituted, as is the Appellate Term, of justices changing from month to month, there should be continuity of decisions. Aside, therefore, from the merits of the legal question presented, regard for repeated decisions of this court requires the affirmance of the judgment below, holding the defense unavailable. Under these circumstances, and as this case will doubtless go to the Court of Appeals, no purpose would be served by extending this opinion. I desire to say, however, that I do not agree that this decision practically writes the inhibition against usury from the statutes, but rather with Mr. Justice Laughlin, in Schlesinger v. Kelly, 114 App. Div. 546, when he said: ‘ ‘ The usury laws remain in full force, but to facilitate the free circulation' of negotiable paper by protecting holders thereof in due course for value in their right to enforce the same, the usury laws are to that extent superseded by the'provisions of section 96 of the Negotiable Instruments Law.” Judgment affirmed, with costs. Guy, J., concurs.