Tallman v. Sprague

28 Jones & S. 425, 44 N.Y. St. Rep. 833

Opinion

Per Curiam.

The defendant asked that the default be opened, that he might make the defence of usury. The affidavits were too vague and uncertain on this subject to permit it to be held that usury was shown. The mere fact of giving a note and then at its maturity another note for a greater amount, does not necessarily involve usury, especially when the form of the statement on the subject intimates that there are other facts not stated which would be relevant and should be considered before holding that there was usury.

The defendant also maintained that he had a defence of payment or partial payment. As to the first, the affidavits did not support it. The second was said to be the giving of the defendant’s note for about the half of the amount of the note in action. If given, this would not have been a payment. The defendant’s affidavits left it doubtful as to whether it was ever given to plaintiff. The affidavits of the plaintiff are to the effect that it never was.

The court would have been justified in denying the motion absolutely.

Order affirmed, with $10 costs.