Van Auken v. Dunning

Mr. Justice Paxson delivered the opinion of the court, We see no error in the rejection of the defendant’s offer. It was proposed to prove that in the spring of 1873, the defendant made a loan of the sum of $2500, of Braddock R. Dunning, at Middletown, in the state of New York, at the rate of seventeen per cent, per annum ; that said loan was usurious by the laws of the state of New York; that with the money thus obtained the defendant paid Everett, the plaintiff in the judgment in controversy,' [467] the money due thereon ; and in order to secure the said loan, Dunning procured from Everett an assignment 'of said judgment in Dunning’s favor; that the latter now holds the judgment as collateral security for said usurious loan, and for no other purpose. Conceding all this to be true, it would not amount to a defence. The plaintiff would be entitled to recover the $2500, actually loaned to the defendant, with legal interest. It was not alleged that any payment had been made on account of either principal or interest. The case was argued upon the theory that the contract was void by the laws of the state of New York. Had the offer been to show that it was void, we should have had an entirely different question before us. The offer was to show that the contract was usurious. Such contract is void here only for the excess. We have no right to presume it is otherwise in the state of New York. The judgment is affirmed.