National Bank of the Metropolis v. Orcutt

New York Supreme Court

National Bank of the Metropolis v. Orcutt

48 Barb. 256, 1867 N.Y. App. Div. LEXIS 44

CourtNew York Supreme Court

DecidedJanuary 7, 1867

StatusPublished

Cited by2 cases

This text of 48 Barb. 256 (National Bank of the Metropolis v. Orcutt) 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

National Bank of the Metropolis v. Orcutt, 48 Barb. 256, 1867 N.Y. App. Div. LEXIS 44 (N.Y. Super. Ct. 1867).

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Opinion

Clerke, J.

I. The defendant had a right to deny the legal existence of the plaintiffs as a corporation.' It is very possible that they may not have complied so exactly with the requirements of the act of congress as to make them a valid organization under that act. 1 see no reason why an issue of that kind should be tried by affidavits, on motion.

II. Undoubtedly the usurious contract should be so pleaded as that it may appear what rate or amount of interest was taken or secured, and on what sum, and for what'time ; and the answer should show a corrupt intent. When these appear from the terms of the answer, nothing further is necessary to make it sufficiently definite. In the answer before us it is expressly stated that the plaintiffs, in discounting the drafts, took the sum of $15 for the time which they had to run; thus averring what the usurious agreement was ; between whom it was made; and the quantum of usurious interest that was agreed upon and received. It does not, indeed, in express terms, state that the agreement was intentionally usurious and corrupt. But I think this must be necessarily inferred. At all events, the answer avers that the plaintiffs discounted the drafts at a usurious rate of interest, contrary to the statute in such case made and provided, and then specifies the amount of interest taken. This may or may not be an insufficient averment of a corrupt intent; [258]*258but it is not so palpably defective in this respect as to authorize a judgment for frivolousness.

[New York General Term, January 7, 1867.

The order should be affirmed, with $10 costs.

Ingeaham, J. I have no copy of the answer, among the papers. If usury is set up as a defense, but defectively, the answer is not frivolous, though it may be bad on demurrer.

I concur in affirming the order.

Leonabd, J. also concurred.

Order affirmed.

Leonard, Clerke and Ingraham, Justices.]

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Clerke, J.

I. The defendant had a right to deny the legal existence of the plaintiffs as a corporation.' It is very possible that they may not have complied so exactly with the requirements of the act of congress as to make them a valid organization under that act. 1 see no reason why an issue of that kind should be tried by affidavits, on motion.

II. Undoubtedly the usurious contract should be so pleaded as that it may appear what rate or amount of interest was taken or secured, and on what sum, and for what'time ; and the answer should show a corrupt intent. When these appear from the terms of the answer, nothing further is necessary to make it sufficiently definite. In the answer before us it is expressly stated that the plaintiffs, in discounting the drafts, took the sum of $15 for the time which they had to run; thus averring what the usurious agreement was ; between whom it was made; and the quantum of usurious interest that was agreed upon and received. It does not, indeed, in express terms, state that the agreement was intentionally usurious and corrupt. But I think this must be necessarily inferred. At all events, the answer avers that the plaintiffs discounted the drafts at a usurious rate of interest, contrary to the statute in such case made and provided, and then specifies the amount of interest taken. This may or may not be an insufficient averment of a corrupt intent; [258]*258but it is not so palpably defective in this respect as to authorize a judgment for frivolousness.

[New York General Term, January 7, 1867.

The order should be affirmed, with $10 costs.

Ingeaham, J. I have no copy of the answer, among the papers. If usury is set up as a defense, but defectively, the answer is not frivolous, though it may be bad on demurrer.

I concur in affirming the order.

Leonabd, J. also concurred.

Order affirmed.

Leonard, Clerke and Ingraham, Justices.]

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Bluebook (online)

48 Barb. 256, 1867 N.Y. App. Div. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-bank-of-the-metropolis-v-orcutt-nysupct-1867.

Opinion

I concur in affirming the order.

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