Smith v. Heath

4 Daly 123

Opinion

By the Court.

*—Labbemobe, J.

—The judge, in his decision of the motion from which this appeal is taken, has characterized the transaction between the parties as “merely one between principal and broker.” Such a conclusion is justified by the papers read on the motion. The moneys advanced by defendants to carry the stock in question, were borrowed by them at the request and for the use of the plaintiff, and the extra rate of interest charged and paid therefor, in no way inured to the benefit of the defendants. They discharged (by plaintiff’s direction) obligations which he had assumed or incurred, and were entitled' to payment of the amount thus disbursed. All the transactions in reference to the charge and payment of such extra interest were had and conducted, not as between the plaintiff and defendants, but between third parties and the defendants as. agents of the plaintiff. He agreed to pay such extra interest, and may be said to have borrowed from the defendants the amount necessary for that purpose. I cannot find in such a proceeding any violation of the statute against usury. But if this view be .incorrect, the holder of the note is entitled to recover the amount of the original indebtedness for which it was given, exclusive of the amount alleged to be usurious (Farmers and Mechanics' Bank v. Joslyn, 37 N. Y. Rep. 353.; The Winsted Bank v. Webb, 39 N. Y. Rep. 325; Carson et al. v. Ingalls, 33 Barb. 657).

The order denying the injunction, was properly made, and should be affirmed.

Order affirmed.

Present, Daly, Ch. J., Larrkmoee and J. F. Daly, JJ.