Matthiessen v. Kohlsaat

The Superior Court of New York City

Matthiessen v. Kohlsaat

28 Jones & S. 27, 40 N.Y. St. Rep. 227, 60 N.Y. Sup. Ct. 27

CourtThe Superior Court of New York City

DecidedOctober 10, 1891

StatusPublished

This text of 28 Jones & S. 27 (Matthiessen v. Kohlsaat) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Matthiessen v. Kohlsaat, 28 Jones & S. 27, 40 N.Y. St. Rep. 227, 60 N.Y. Sup. Ct. 27 (N.Y. Super. Ct. 1891).

Pincite

Opinion

Per Curiam:

The appeal is from the judgment only, and consequently only questions of law can be reviewed. At the trial no claim was made that there was any question for the jury, nor was there a fatal variance between the proof and the allegations of the complaint. The action was brought to recover $3,000, being the amount of a loan made to defendant by the plaintiffs’ testator, and the complaint alleged the making of the said loan and a promise on the part of the defendant to repay the $3,000. The proof established the allegations of the complaint and incidentally some evidence was introduced from which the jury, if the issue had been made, might have found that the defendant, on obtaining the loan, had further agreed to pay a usurious rate of interest. But the only defence pleaded was a general denial and usury did not conclusively appear as matter of law from the evidence adduced by the plaintiffs. Under the circumstances stated the defence of usury was not available to the defendant. Millbank v. Jones, 28 N. E. Rep., 31, and cases there cited.

The record discloses no error, and the judgment must therefore be affirmed, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam:

The appeal is from the judgment only, and consequently only questions of law can be reviewed. At the trial no claim was made that there was any question for the jury, nor was there a fatal variance between the proof and the allegations of the complaint. The action was brought to recover $3,000, being the amount of a loan made to defendant by the plaintiffs’ testator, and the complaint alleged the making of the said loan and a promise on the part of the defendant to repay the $3,000. The proof established the allegations of the complaint and incidentally some evidence was introduced from which the jury, if the issue had been made, might have found that the defendant, on obtaining the loan, had further agreed to pay a usurious rate of interest. But the only defence pleaded was a general denial and usury did not conclusively appear as matter of law from the evidence adduced by the plaintiffs. Under the circumstances stated the defence of usury was not available to the defendant. Millbank v. Jones, 28 N. E. Rep., 31, and cases there cited.

The record discloses no error, and the judgment must therefore be affirmed, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

28 Jones & S. 27, 40 N.Y. St. Rep. 227, 60 N.Y. Sup. Ct. 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matthiessen-v-kohlsaat-nysuperctnyc-1891.