Kass v. Blumberg

142 N.Y.S. 544

Opinion

BIJUR, J.

The action is upon a promissory note. The appellant was an indorser. The defense was usury in the making of the note, with an allegation that the plaintiff, at the time he became the holder thereof, was aware of the usury and participated therein.

The learned trial court evidently based its action upon the rule that the defense of usury is not available to an indorser as against a holder in due course, pursuant to section 116 of the Negotiable Instruments Law; but section 91 defines a holder in due course as one who, among other elements, had no notice of any infirmity at the time it was negotiated to him. Defendant should have been allowed to prove plaintiff’s knowledge of the usury, as requested by him before the direction of the verdict.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.