Schroeppell v. Corning

2 N.Y. 132

Opinion

After advisement, The Court were of opinion that the declaration should have conformed to the statute above mentioned and that a new trial should be granted on that ground. No decision was made upon the other questions in the cause.

New trial granted.¹

Footnotes

1

It is still necessary that usury be specially pleaded. Haywood v. Jones, 10 Hun 500. “It must be pleaded with such precision and certainty, as to make out, on the face of the pleading, that a corrupt and usurious contract has been entered into.” Bank of Auburn v. Lewis, 77 N. Y. 519. Nevertheless, the Code has altered the strict rule, which formerly prevailed, as to the effect of a variance between the averment and proof of usury. Catlin v. Gunter, 11 N. Y. 368. Dugal v. Simmons, 23 Ibid. 491. Duel v. Spence, 1 Abb. Dec. 559. Bay v. Grimstead, 10 Barb. 321. The transaction must be correctly set out in substance ; but an immaterial variance between the pleading and evidence, tending to prove the usurious agreement, but not in its entire scope and meaning, may be disregarded. Clayes v. Hooker, 4 Hun 231. Maule v. Crawford, 14 Ibid. 193. Bat a mateRil variance in setting out the ebntract, is fatal, Griggs v. Howe, 2 Abb. Dec. 91 ; s. c. 31 Barb. 100 ; Fanners’ and Mechanics’ Bank v. Lang, 22 Hm 372.