Le Baron v. Van Brunt

Charles P. Daly, Chief Justice. On what ground the general term of the marine court affirmed this judgment does not appear. Nothing appears in the appeal papers, but a dissenting opinion by Judge Goepp, which states an objection to affirming the judgment, to which I see no answer. Assuming, as Ahearn testified, that the defendant Smith brought him a batch of notes, and got him to discount them upon a representation by him that they were business obligations, and that the note in suit was given in renewal in part of one of these notes, still the fact appears, and is not contradicted, that" when this note in suit was given for $113.87, which was payable in thirty days, $4.87 was deducted for interest, Ahearn giving Van Brunt a check for $109. This was reserving and taking, on the part of Ahearn, for what was in fact a forbearance, in [351] terest on the note, at a rate of over fifty per cent, per annum. It does not appear clearly that the note in suit was given in renewal of a previous note. Yan Brunt testified that when one of the notes, which was for $263, which Smith had got Ahearn to discount, became due, Yan Brunt called upon Ahearn, told him that it was an accommodation note, and that he would have to give time upon it, which Ahearn said he would do ; that he asked him what he would charge, and Ahearn said $7.50 ; that he, Yan Brunt, then got the defendant Smith to make two notes, one for $16-3, at sixty days, and another for $100, at ninety days, being the amount of the prior note, which two notes Yan Brunt indorsed and gave to Ahearn, who, instead of charging $7.50, charged $9.50 because the $100 note was for ninety days. That when the $163 note became due, he called upon Ahearn, and told him that he would have to extend the time of payment. Now, the note in suit may have been a renewal in part of this $163, but Yan Brunt does not say so. All that lie says is, that he gave the note in suit for $113 to Ahearn, and that the defendant Smith indorsed it. It may be that all the evidence was not inserted in the case, for Ahearn is referred to as having been recalled as a witness, and it does not appear from the case what he had testified to before, if he did testify previously. It may be, being for $113, that it was a renewal in part of the $163, and that, as averred in the answer, the residue of the $163 was paid by Yan Brunt, so that he took up the $163 note; but however that may be, Smith testified that it was an accommodation note, given by Yan Brunt, to him, without any consideration; and Yan Brunt swears, and is not contradicted by Ahearn, that when the note was given by him to Ahearn, it was discounted at an illegal rate of interest. This point is not noticed in the opinion of Judge Mc-Adah at the special term, and whether it was considered or not by the majority of the judges of the general term, who afiirmed the judgment, we do not know, as they do not appear to have given any opinion. The fact referred to in the opinion of Judge MoAdam, that payment of the note was demanded of the maker, at New Brunswick, in New Jersey, in no way affects the question. The proof shows that the note was made [352] in New York, that it was discounted in this state, and the illegal interest taken and reserved here, which renders the note void. ( Wayne County Savings Bank v. Low, 6 Abb. N. C. 76; affirmed by court of appeals, 81 N. Y. 566, and cases there cited.) The judgment should be reversed.