Michaelson v. Sardu

Appellate Division of the Supreme Court of New York

Michaelson v. Sardu

258 A.D. 91, 15 N.Y.S.2d 559, 1939 N.Y. App. Div. LEXIS 6366

Appellate Division of the Supreme Court of the State of New York·Decided November 17, 1939·Published·Cited by 1 cases

Opinions

Per Curiam.

The defense of usury was not sustained upon the trial. There was no proof to show that the alleged usurious payment to the loan broker was made with the knowledge or acquiescence of plaintiff. A principal cannot be charged with usury of his agent in the absence of proof of knowledge and assent thereof by the principal, and the burden of establishing such knowledge and assent on the part of the principal rests upon the party making the claim. (Stillman v. Northrup, 109 N. Y. 473; Condit v. Baldwin, 21 id. 219; Van Wyck v. Watters, 81 id. 352; Finkelstein v. Chasin, 241 App. Div. 872.)

[92]*92The determination of the Appellate Term and the judgment of the Municipal Court should be reversed and judgment directed in favor of plaintiff for the relief demanded in the complaint, with interest and with costs to the plaintiff in all courts.

Present ■—Martin, P. J., Glennon, Unterm ver, Dore and Cohn, JJ.; Dore, J., dissents and votes to affirm.

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Per Curiam.

The defense of usury was not sustained upon the trial. There was no proof to show that the alleged usurious payment to the loan broker was made with the knowledge or acquiescence of plaintiff. A principal cannot be charged with usury of his agent in the absence of proof of knowledge and assent thereof by the principal, and the burden of establishing such knowledge and assent on the part of the principal rests upon the party making the claim. (Stillman v. Northrup, 109 N. Y. 473; Condit v. Baldwin, 21 id. 219; Van Wyck v. Watters, 81 id. 352; Finkelstein v. Chasin, 241 App. Div. 872.)

[92]*92The determination of the Appellate Term and the judgment of the Municipal Court should be reversed and judgment directed in favor of plaintiff for the relief demanded in the complaint, with interest and with costs to the plaintiff in all courts.

Present ■—Martin, P. J., Glennon, Unterm ver, Dore and Cohn, JJ.; Dore, J., dissents and votes to affirm.

Michaelson v. Sardu, 258 A.D. 91, 15 N.Y.S.2d 559, 1939 N.Y. App. Div. LEXIS 6366 (N.Y. Ct. App. 1939).

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