Lane v. Losee

New York Supreme Court

Lane v. Losee

2 Barb. 56, 1847 N.Y. App. Div. LEXIS 4

DecidedOctober 30, 1847

StatusPublished

This text of 2 Barb. 56 (Lane v. Losee) 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.

Bluebook

Lane v. Losee, 2 Barb. 56, 1847 N.Y. App. Div. LEXIS 4 (N.Y. Super. Ct. 1847).

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Opinion

Harris, J.

The transaction between Burr and Losee was clearly usurious. Burr received a security for the payment of $5000, with interest from the 9th of November, 1843, and gave therefor his checks payable six months thereafter, thus seeming [58]*58to himself a premium of six months interest upon the entire loan, except the note for $341,10. The only question in the case is whether the defendant has proved the usurious contract as he has stated it in his bill. For in a suit, either in equity or at law, founded on a specialty, the terms of the usurious contract, and the amount of the usurious premium, must be set out distinctly and correctly in the answer, or plea, and the proof must sustain such statements. If the contract proved is materially different from that alleged in the answer, or plea, the defendant must fail; even though the contract proved is usurious. (New Orleans Gas Light and Banking Co. v. Dudley, 8 Paige, 457. Vroom v. Ditmas, 4 Id. 526. Rowe v. Phillips, 2 Sand. Ch. Rep. 14.) The only variance between the proof and the statements of the answer upon which the plaintiff relies in this case, is that it is not proved that the balance of ninety cents in cash was paid. I cannot regard this variance as a matter of substance. It is not material, upon the question of usury, whether the ninety cents were paid or not. The charge in the answer is that the usury consisted in giving the checks payable in six months without any allowance for the interest before they were payable, and thus securing to the lender an usurious premium equal to six months’ interest on the checks. This charge is sustained by the testimony of Hoag. There is, therefore, no material difference between the usurious agreement as proved, and that alleged in the answer. In this view of the case, the testimony of the witnesses, Cramer and Robert Losee, becomes unimportant; and I have therefore not thought it necessary to examine the question of their competency. There must be a decree dismissing the plaintiffs’ bill, with costs.

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Harris, J.

The transaction between Burr and Losee was clearly usurious. Burr received a security for the payment of $5000, with interest from the 9th of November, 1843, and gave therefor his checks payable six months thereafter, thus seeming [58]*58to himself a premium of six months interest upon the entire loan, except the note for $341,10. The only question in the case is whether the defendant has proved the usurious contract as he has stated it in his bill. For in a suit, either in equity or at law, founded on a specialty, the terms of the usurious contract, and the amount of the usurious premium, must be set out distinctly and correctly in the answer, or plea, and the proof must sustain such statements. If the contract proved is materially different from that alleged in the answer, or plea, the defendant must fail; even though the contract proved is usurious. (New Orleans Gas Light and Banking Co. v. Dudley, 8 Paige, 457. Vroom v. Ditmas, 4 Id. 526. Rowe v. Phillips, 2 Sand. Ch. Rep. 14.) The only variance between the proof and the statements of the answer upon which the plaintiff relies in this case, is that it is not proved that the balance of ninety cents in cash was paid. I cannot regard this variance as a matter of substance. It is not material, upon the question of usury, whether the ninety cents were paid or not. The charge in the answer is that the usury consisted in giving the checks payable in six months without any allowance for the interest before they were payable, and thus securing to the lender an usurious premium equal to six months’ interest on the checks. This charge is sustained by the testimony of Hoag. There is, therefore, no material difference between the usurious agreement as proved, and that alleged in the answer. In this view of the case, the testimony of the witnesses, Cramer and Robert Losee, becomes unimportant; and I have therefore not thought it necessary to examine the question of their competency. There must be a decree dismissing the plaintiffs’ bill, with costs.

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Bluebook (online)

2 Barb. 56, 1847 N.Y. App. Div. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lane-v-losee-nysupct-1847.

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