Allerton v. Belden

Ingraham, P. J. The complaint in this case alleges, that the firm, of Freeman & Son requested the plaintiff to aid and assist them in procuring a loan from the defendant, Belden, and offered plaintiff as security a chattel mortgage. That the plaintiff agreed to aid, assist, and unite with the firm in procuring such loan, and the defendant agreed to make the loan on receiving the note of Freeman & Co., indorsed by plaintiff. That for the purpose of procuring the loan, and at the request of Belden, the plaintiff indorsed the note and the loan was made, and that the note was made on an usurious agreement. The plaintiff asks for relief in equity, directing the note be adjudged void. It is claimed that the plaintiff was only a surety, and that as such he cannot maintain this action. In Perrine v. Striker (7 Paige, 602), and Livingston v. Harris (11 Wend., 336), the opinion was expressed that a surety was a borrower within the meaning of the statute, and was entitled to relief in equity against an usurious contract. In Vilas v. Jones (1 N. Y. Rep., 274), these opinions were reviewed by Bronson, J., and he expressed a contrary opinion, viz.: That the surety was not a borrower within that statute. In neither of these cases was the question necessary to the decision of the cases, and the same was disposed of' on other grounds. In the latter case, Gardiner, J., did not concur with Bronson, J., as to the surety, and Jewett, C. J., only concurred upon the ground that the plaintiff was too late after judgment to resort to the remedy sought. The other members of the court, without expressing any opinion, concurred in the conclusion. It can hardly be said, therefore, that either of these cases can be considered an authoritative expression of opinion, binding on other courts, and the question is still open for discussion. There can be no doubt that the surety as well as the principal may set up the defence of usury in an action upon the note. (Billington v. Wagoner and others, 33 N. Y., 31.) And as such he is entitled to the same remedies as the principal debtor, unless the act of 1837, by the term borrower, [495] intended to exclude the surety. I do not, however, deem it material to decide this question in disposing of this case. The complaint contains the averment, that the plaintiff united in procuring the loan with the firm of Freeman & Son, and that for the purpose of procuring the loan, the plaintiff and Freeman & Son gave the note in this form at the request of defendant, Belden. Whatever might be the conclusion as to the right of a mere surety, the present case shows the plaintiff to be a party to procuring the loan, and therefore, entitled to this remedy as a borrower within the meaning of the statute. The form in which the parties completed the securities to the defendant on procuring the loan would be immaterial, as it was so done at the request of the lender of the money. The demurrer was properly overruled. Judgment affirmed with costs.