Brooklyn Trust Co. v. Hardy

268 A.D. 785, 49 N.Y.S.2d 30, 1944 N.Y. App. Div. LEXIS 3472

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 1944
• Status: Published

Opinion

In this action to recover upon a note for $15,000, signed “ James G. Hardy & Co.,” and guaranteed by defendant, the defendant pleaded a defense of usury and a connterclaim for cancellation, et cetera, by reason thereof, without offering the return of anything. At the trial the plaintiff contended that the maker was an Illinois corporation. The defendant contended that he was himself the maker, doing business under the name signed to the note. The trial court found, contrary to the contentions of both parties, that the maker of the note was a partnership. Judgment was entered upon the decision dismissing the complaint upon the merits, upon the ground of usury, and dismissing the counterclaim upon the merits, upon the ground that the defendant was not a borrower within the meaning of section 374 of the General Business Law. This note, upon the record, was the obligation either of the Illinois corporation or of the defendant personally. The finding that it was the note of a partnership is without evidence to sustain it. The plaintiff appeals from that part of the judgment which dismissed the complaint upon the merits and awarded costs against the plaintiff. The defendant appeals from that part of the judgment which dismissed the counterclaim upon the merits. Judgment reversed upon the law and the facts and a new trial granted, with costs to abide the event. A new trial upon all the issues should be had in the interests of justice. For that purpose, all findings of fact are reversed and conclusions of law disapproved. Close, P. J., Carswell, Adel, Lewis and Aldrich, JJ., concur.