Isle of Wight Co. v. Smith

New York Supreme Court

Isle of Wight Co. v. Smith

4 N.Y.S. 73, 58 N.Y. Sup. Ct. 562, 22 N.Y. St. Rep. 862, 51 Hun 562, 1889 N.Y. Misc. LEXIS 193

CourtNew York Supreme Court

DecidedFebruary 11, 1889

StatusPublished

Cited by3 cases

This text of 4 N.Y.S. 73 (Isle of Wight Co. v. Smith) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Isle of Wight Co. v. Smith, 4 N.Y.S. 73, 58 N.Y. Sup. Ct. 562, 22 N.Y. St. Rep. 862, 51 Hun 562, 1889 N.Y. Misc. LEXIS 193 (N.Y. Super. Ct. 1889).

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Opinion

Dykman, J.

This is an action brought to procure the cancellation and surrender of certain securities for the payment of a usurious loan made by the defendant to the plaintiff. The defendant demurred to the complaint, and had judgment in his favor in the court below, from which the plaintiff has appealed. We find no principle which will justify a recovery in this action. The plaintiff is a corporation, and could not interpose the defense of usury in any action brought to enforce the payment of the loan. Chapter 172, Laws 1850. As, therefore, the interposition of such a defense would be unsuccessful, it follows necessarily that the same facts set up'in a complaint in an action for affirmative relief can afford the plaintiff no greater relief. It cannot accomplish by indirection what it cannot do directly. Moreover, we think the question has been adjudicated in this state, and decided against the contention of the plaintiff. Insurance Co. v. Packer, 17 N. Y. 51: Leavitt v. Curtis, 15 N. Y. 9. The judgment appealed from should therefore be affirmed, with costs. All concur.

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Dykman, J.

This is an action brought to procure the cancellation and surrender of certain securities for the payment of a usurious loan made by the defendant to the plaintiff. The defendant demurred to the complaint, and had judgment in his favor in the court below, from which the plaintiff has appealed. We find no principle which will justify a recovery in this action. The plaintiff is a corporation, and could not interpose the defense of usury in any action brought to enforce the payment of the loan. Chapter 172, Laws 1850. As, therefore, the interposition of such a defense would be unsuccessful, it follows necessarily that the same facts set up'in a complaint in an action for affirmative relief can afford the plaintiff no greater relief. It cannot accomplish by indirection what it cannot do directly. Moreover, we think the question has been adjudicated in this state, and decided against the contention of the plaintiff. Insurance Co. v. Packer, 17 N. Y. 51: Leavitt v. Curtis, 15 N. Y. 9. The judgment appealed from should therefore be affirmed, with costs. All concur.

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Bluebook (online)

4 N.Y.S. 73, 58 N.Y. Sup. Ct. 562, 22 N.Y. St. Rep. 862, 51 Hun 562, 1889 N.Y. Misc. LEXIS 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/isle-of-wight-co-v-smith-nysupct-1889.

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