Silverstein v. Rachman

258 A.D. 974, 16 N.Y.S.2d 971, 1940 N.Y. App. Div. LEXIS 8499

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1940
• Status: Published

Opinion

Action to recover (1) $11,950, being the balance of purchase price of corporate stock, and (2) seventy-five dollars, being twenty-five dollars per week for three weeks, each cause being based on provisions of a written agreement which was modified by a subsequent written agreement between plaintiff and defendant, each of which agreements related to the sale of said stock by plaintiff to defendant. The defendant pleaded usury in the transaction by way of affirmative defense and also as the basis of a counterclaim, for recovery from plaintiff of the moneys paid to the latter, pursuant to the provisions of the agreements. Upon the trial of the issues before the court and a jury the court directed a verdict in favor of plaintiff for the aggregate amount claimed in both causes of action and dismissed the counterclaim. From the judgment thereon entered defendant appeals. Judgment reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. The learned trial justice erred in directing a verdict and in dismissing the counterclaim. The evidence presented a question of fact whether the payments of twenty-five dollars per week, as provided in the agreements, constituted illegal interest on the agreed purchase price. The trial justice also erred in excluding the proof offered by the defendant at folios 265-268, being the accountant’s proposed testimony as to negotiations between the parties for the sale of the stock, including a claimed exaction by plaintiff from defendant of the sum of twenty-five dollars per week in lieu of interest on the purchase price. Hagarty, Carswell, Adel, Taylor and Close, JJ., concur.