Earl, C.
Hpon the trial of this action, the defendant objected that the plaintiff, Henry H. Birdsall, was not competent to give evidence in behalf of his wife, the other plaintiff. The objection was overruled and he gave such evidence.
The action was tried in September, 1862, and then the Code, § 399, provided that a party to an action might be examined as a witness
“
on his own behalf, or in behalf of any other party, in the same manner and subject to the same rules of examination as any other witness.” This section of the Code has frequently perplexed the legislature apd the courts. It has not always been easy to understand or expound it. The plain, obvious meaning of the language used is certainly
broad enough to sanction the ruling made at the circuit, and the current of judicial authority sustains it.
(Marsh
v.
Potter,
30 Barb., 506;
Hooper
v.
Hooper,
43 id., 292;
Schaffner
v.
Reuter,
37 id., 44;
Chamberlain
v.
The People,
23 N. Y., 85;
Shoemaker
v.
McKee,
19 How., 86;
Wehrkamp
v.
Willett,
1 Keyes, 250;
Card
v.
Card,
39 N. Y., 321.)
This question has, since the law of 1867 in reference to the testimony of husband and wife, ceased to be of any practical importance, and therefore, without the full discussion it might otherwise deserve, I will simply say that I- am of opinion that no error was committed in receiving the husband’s evidence.
At the close of plaintiffs’ evidence upon the trial of the issues, defendant’s counsel moved that the court decide as matter of law upon the evidence that there was no proof of any usurious agreement, and that as to the issues on trial the plaintiffs be nonsuited. The court denied the motion and defendant’s. counsel excepted. This motion was properly denied for two reasons.
(1.) This was an equitable action, and issues had been framed and ordered to be tried before a jury at the circuit. These issues were upon trial at the time this motion was made. The action was not upon trial, and the whole case was not then before the court. These issues, like feigned issues under the old chancery practice, were ordered to be tried, so that the Court could have the findings of the jury upon the final hearing of the whole case for the information of its conscience. The order of the court framing the issues and ordering them to be tried, is not satisfied by the finding or decision of the judge holding the circuit. The jury must find upon the issues, and their finding must be presented to the court upon the final hearing. If they find upon insufficient evidence, the party aggrieved has his remedy by a motion for a new trial, according to the practice prescribed in Supreme Court Buie Ho. 33. The judge presiding at the trial of the issues has no right to nonsuit. He may probably order the jury to find either way upon the
issues, and the jury having found in accordance with his order, his decision may be reviewed upon a motion for a new trial. But such an order was not asked for in this case. Hence no error was committed by the judge in his refusal to nonsuit.
(Snell
v.
Loucks,
12 Barb., 385; Van Santvoord Eq. Pr., 261, 500.)
(2.) But if we assume that the question has been properly raised and is properly before us, I am of opinion that the proof was sufficient to sustain the finding of the jury upon the question of usury.
The usury laws of this State prohibit the taking of more than seven per cent, directly or indirectly, for the loan or forbearance of money, and condemn all contracts or securities whereupon or whereby a greater sum is taken, secured or agreed to be paid. (1 R. S., 772, Laws of 1837,1 chap. 430.) These laws reach indirect as well as direct agreements to obtain more than seven per cent for the loan or forbearance of money. In the administration of these laws, courts look not so much to the forms, which alleged usurious agreements may take as to their substance and effect, and the intention of the parties to them. No covering which may be put upon them will be allowed to conceal their real features from the searching eye of a court of justice.
(Crippen v. Her
mance, 9 Paige 211;
Fitzsimmons
v. Beam, 44 Penn. St., 32.)
The facts of this case, as the proof tended very strongly to show, are substantially as follows: The defendant and Hungerford were about to sell the mortgaged premises under their decree of foreclosure. The plaintiffs wanted time to pay and applied to them to give it to them. Whereupon, it was agreed that the defendant and Hungerford should take up a prior' mortgage and then let the plaintiffs have time to pay, in five annual payments, the amount of such prior mortgage and the decree and costs; and for this forbearance they were to have $1,000 besides- the lawful interest; to secure the defendant and Hungerford, the plaintiffs were to permit them to bid off the premises at the sale
under the decree, and then they were to convey the premises to Mrs. Birdsall, and she and her husband were to give them a bond, and mortgage upon the same premises for the payment of the whole sum due, including costs and the $1,000, and the bond and mortgage were given.
The plaintiffs owed the defendant and Hungerford, including the amount of the prior mortgage, the decree and costs, $4,312.81, and to induce them to forbear payment for the time named, agreed to pay them $1,000 besides the lawful interest, and to secure the payment, gave the bond and mortgage in question for the whole amount, including the $1,000. Such is the result and effect of the entire transaction ; and within any authority to which my attention has been called, the securities are tainted with usury.
There was some evidence tending to show that one of the inducements to the plaintiff to make the agreement to pay the $1,000 was the consideration that, by the sale under the decree, and the conveyance to Mrs. Birdsall, the husband’s life estate was cut off and the lien of judgments upon such life estate was thus destroyed. But this does not appear to have been the principal, much less the exclusive, inducement. It does not appear how much of the $1,000 was for this consideration. It is sufficient to sustain the allegation of usury, that a portion of it was for the forbearance. The main consideration was the forbearance, and the other benefits which the plaintiffs were to get from the agreement were merely incidental.
It is claimed on the part of the defendant that the plaintiffs cannot maintain this action without showing that they paid or offered to pay the amount actually due him, for the reason that they are not “borrowers” within the meaning of section 4 of the usury act of 1837. This objection does not appear to have been taken before. Although there was no allegation in the complaint of such payment or offer to pay, the objection that it was necessary was not taken in the answer or upon the trial.
After the trial of the issues before the jury, the cause came
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Earl, C.
Hpon the trial of this action, the defendant objected that the plaintiff, Henry H. Birdsall, was not competent to give evidence in behalf of his wife, the other plaintiff. The objection was overruled and he gave such evidence.
The action was tried in September, 1862, and then the Code, § 399, provided that a party to an action might be examined as a witness
“
on his own behalf, or in behalf of any other party, in the same manner and subject to the same rules of examination as any other witness.” This section of the Code has frequently perplexed the legislature apd the courts. It has not always been easy to understand or expound it. The plain, obvious meaning of the language used is certainly
broad enough to sanction the ruling made at the circuit, and the current of judicial authority sustains it.
(Marsh
v.
Potter,
30 Barb., 506;
Hooper
v.
Hooper,
43 id., 292;
Schaffner
v.
Reuter,
37 id., 44;
Chamberlain
v.
The People,
23 N. Y., 85;
Shoemaker
v.
McKee,
19 How., 86;
Wehrkamp
v.
Willett,
1 Keyes, 250;
Card
v.
Card,
39 N. Y., 321.)
This question has, since the law of 1867 in reference to the testimony of husband and wife, ceased to be of any practical importance, and therefore, without the full discussion it might otherwise deserve, I will simply say that I- am of opinion that no error was committed in receiving the husband’s evidence.
At the close of plaintiffs’ evidence upon the trial of the issues, defendant’s counsel moved that the court decide as matter of law upon the evidence that there was no proof of any usurious agreement, and that as to the issues on trial the plaintiffs be nonsuited. The court denied the motion and defendant’s. counsel excepted. This motion was properly denied for two reasons.
(1.) This was an equitable action, and issues had been framed and ordered to be tried before a jury at the circuit. These issues were upon trial at the time this motion was made. The action was not upon trial, and the whole case was not then before the court. These issues, like feigned issues under the old chancery practice, were ordered to be tried, so that the Court could have the findings of the jury upon the final hearing of the whole case for the information of its conscience. The order of the court framing the issues and ordering them to be tried, is not satisfied by the finding or decision of the judge holding the circuit. The jury must find upon the issues, and their finding must be presented to the court upon the final hearing. If they find upon insufficient evidence, the party aggrieved has his remedy by a motion for a new trial, according to the practice prescribed in Supreme Court Buie Ho. 33. The judge presiding at the trial of the issues has no right to nonsuit. He may probably order the jury to find either way upon the
issues, and the jury having found in accordance with his order, his decision may be reviewed upon a motion for a new trial. But such an order was not asked for in this case. Hence no error was committed by the judge in his refusal to nonsuit.
(Snell
v.
Loucks,
12 Barb., 385; Van Santvoord Eq. Pr., 261, 500.)
(2.) But if we assume that the question has been properly raised and is properly before us, I am of opinion that the proof was sufficient to sustain the finding of the jury upon the question of usury.
The usury laws of this State prohibit the taking of more than seven per cent, directly or indirectly, for the loan or forbearance of money, and condemn all contracts or securities whereupon or whereby a greater sum is taken, secured or agreed to be paid. (1 R. S., 772, Laws of 1837,1 chap. 430.) These laws reach indirect as well as direct agreements to obtain more than seven per cent for the loan or forbearance of money. In the administration of these laws, courts look not so much to the forms, which alleged usurious agreements may take as to their substance and effect, and the intention of the parties to them. No covering which may be put upon them will be allowed to conceal their real features from the searching eye of a court of justice.
(Crippen v. Her
mance, 9 Paige 211;
Fitzsimmons
v. Beam, 44 Penn. St., 32.)
The facts of this case, as the proof tended very strongly to show, are substantially as follows: The defendant and Hungerford were about to sell the mortgaged premises under their decree of foreclosure. The plaintiffs wanted time to pay and applied to them to give it to them. Whereupon, it was agreed that the defendant and Hungerford should take up a prior' mortgage and then let the plaintiffs have time to pay, in five annual payments, the amount of such prior mortgage and the decree and costs; and for this forbearance they were to have $1,000 besides- the lawful interest; to secure the defendant and Hungerford, the plaintiffs were to permit them to bid off the premises at the sale
under the decree, and then they were to convey the premises to Mrs. Birdsall, and she and her husband were to give them a bond, and mortgage upon the same premises for the payment of the whole sum due, including costs and the $1,000, and the bond and mortgage were given.
The plaintiffs owed the defendant and Hungerford, including the amount of the prior mortgage, the decree and costs, $4,312.81, and to induce them to forbear payment for the time named, agreed to pay them $1,000 besides the lawful interest, and to secure the payment, gave the bond and mortgage in question for the whole amount, including the $1,000. Such is the result and effect of the entire transaction ; and within any authority to which my attention has been called, the securities are tainted with usury.
There was some evidence tending to show that one of the inducements to the plaintiff to make the agreement to pay the $1,000 was the consideration that, by the sale under the decree, and the conveyance to Mrs. Birdsall, the husband’s life estate was cut off and the lien of judgments upon such life estate was thus destroyed. But this does not appear to have been the principal, much less the exclusive, inducement. It does not appear how much of the $1,000 was for this consideration. It is sufficient to sustain the allegation of usury, that a portion of it was for the forbearance. The main consideration was the forbearance, and the other benefits which the plaintiffs were to get from the agreement were merely incidental.
It is claimed on the part of the defendant that the plaintiffs cannot maintain this action without showing that they paid or offered to pay the amount actually due him, for the reason that they are not “borrowers” within the meaning of section 4 of the usury act of 1837. This objection does not appear to have been taken before. Although there was no allegation in the complaint of such payment or offer to pay, the objection that it was necessary was not taken in the answer or upon the trial.
After the trial of the issues before the jury, the cause came
on regularly for trial at the Special Term, and the judge found the facts and law in favor of the plaintiffs, and ordered judgment according to the prayer of the complaint. To these findings of the judge there was no exception. Unless this objection had been raised during the trial in some form, the defendant should have raised it by exception to the findings of the court. He claims that he could not thus except, and that the practice did not require him to.' In this he is clearly mistaken. After the trial of the issues ordered to be tried by a jury in such a case, the cause is required to be brought to trial or hearing regularly at the Special Term. Then, if proof is necessary to establish facts not admitted in the pleadings or found by the jury, such proof must be given. If such proof is unnecessary, then, upon the facts admitted and found, the court, using the findings of the jury for the information of its conscience, finds the facts and decides the law substantially as it would if all the issues had been regularly tried before it, and exceptions may be taken just as if none of the issues had been tried before the jury, but the whole case had been tried before the court without the intervention of a jury. Hence, 'the defendant is not here in a condition to avail himself of this objection which his counsel has urged upon our attention.
I have given careful consideration to the charge and refusals to charge of the judge who presided at the trial of the issues of fact, and am of the opinion that there are no errors of which the defendant can justly complain.
Having thus carefully examined all the questions discussed before us which I deem important, I reach the conclusion that the judgment should be affirmed with costs.
All concur.
Judgment affirmed.
OASES DECIDED nr THE COMMISSION OF APPEALS OF THE STATE OP NEW YORK, A.T THE SBFTBMlBBH. THEM, 1873.