Mazuzan v. Mead

21 Wend. 285

• Court: New York Supreme Court
• Decided: May 15, 1839
• Status: Published

Opinion

By the Court,

Cowen, J.

The contract, as set forth in this count, is said to be expressly usurious. In considera - tian of $200 advanced, the defendant agrees to pay, on a subsequent'day, $210, with interest on the' latter sum from a previous day. It is answered that an usurious intent is not to be inferred, inasmuch as the plaintiff cannot in legal effect recover, aqd does not in truth seek fo recover more than he advanced, with the legal,interest. If such were the express agreement at the time, it would clearly take away the sting of usury; and if that appear upon the face of the declaration to be but the legal effect of the guaranty, then the case is the same, ’ Had the defendant simply endorsed the note, leaving himself to be charged 'in the usual way by demand and notice,, the transaction would not have been usurious. That was held by this court, and afterwards by the court of errors, in Cram v. Hendricks, 7 Wendell, 569, on the express ground that only the consideration advanced was in construction of law secured by the endorsement. .We think this case is the same in principle. The only difference is, that the guaranty being absolute, there is a waiver of demand and notice. Allen v. Rightmere, 20 Johns. R. 365. True, the guaranty is equivalent to a direct promissory note, with superadded security j but so was the endorsement in Cram v. Hendricks. We ate not called upon to support the principle of that ease ; it is enough that we cannot distinguish its principle from that of the one before us.

Judgment for plaintiff on demurrer, with leave to defendant to amend.