Woodruff, J.
The nonsuit having been granted in this case, upon the Plaintiff’s opening, the facts stated in the complaint
must be taken to be true as alleged, nothing having been conceded ■ such opening inconsistent with the allegations in the complaint, nit, on the contrary, the statement upon which the nonsuit was ordered having in substance reiterated them.
Tt is perfectly settled, that the right to sustain -the action un the facts alleged does not depend upon the prayer for judgment. Any relief to which, upon the facts alleged, the Plaintiff is entitled, the Court should grant when the Defendant has appeared and answered. (Code, § 275; Emery
v.
Pease, 20 N. Y. 62; Marquat
v.
Marquat, 2 Kern. 341.)
The complaint shows that the Plaintiff, as endorsee, held six promissory notes, of $2,000 each, made by the Defendants, which were due and payable, and had been protested for non-payment; and the whole principal and interest, from their respective maturity, was due to the Plaintiff. That, as an extension of the time of payment, the Defendants gave to the Plaintiff, for the same debt, other six notes for $2,000 each, and paid $426, and the Plaintiff delivered to the Defendants the first six notes'. The six notes last delivered as such extension of the time of payment had become payable before the action is brought, and have also been protested for non-payment.
Upon these facts it is clear that a sum of money, to wit, the amount of twelve thousand dollars (besides interest), less the $426, is due to the Plaintiffs from the Defendants. It became payable at the maturity of the first six notes. The time for payment w;as extended in part (whether by a binding contract or not) until the maturity of other six notes, but the debt has not been paid. Primá facie, the last six notes are instruments by force of which the Plaintiff is entitled to recover, but it is not alone by force of those notes that such right of recovery exists; the primary cause and consideration of the indebtedness of which these notes are evidence has not been satisfied. The original evidence of the debt was surrendered, and other notes substituted; but the consideration of the latter is simply the indebtedness, which formed a complete ground of indebtedness before they were given.
It is not essential that the Plaintiff should determine by alie
gation whether it is by
force
of the first six notes, or
by force
of . the second six, that he makes his claim. If, upon the whole transaction stated in the complaint, it is clear that the Plaintiff is entitled to have of the Defendants a sum of money specified, there is a cause of action.
Although the counsel for the Appellants has argued with great ingenuity and skill in support of the nonsuit, and has insisted that the complaint does not state facts sufficient to constitute a cause of action, yet his first subordinate proposition is, that the complaint “ sets out a good cause of action
on the last notes?
And the alleged defect, therefore, lies in the supposed fact that “ the action is
brought
on, as well as to recover, the amount of the
first
six notes.”
It would seem to be enough to say, that the concession that the complaint sets out a cause of action on the
last
notes disposes of the point.
The fallacy of the reasoning is, that it assumes that the action is necessarily to be regarded as brought
upon
either set of notes, to the exclusion of any reference to the others. The action is to recover the debt; the amount of the first six notes is the measure of the indebtedness. The notes successively have been given as evidence of the indebtedness.
It follows, that, so long 'as nothing appeared in the case except what the complaint alleged, there was a plain right to recover just what the Plaintiff claimed to recover. In that view the complaint may have contained matter which was wholly unnecessary ; and the statement, that the Defendants alleged and claimed that the last notes were usurious, may have been unnecessary ; but the substantial fact appeared, that the Defendants were indebted to the Plaintiff in the
amount
of certain six notes, on the surrender of which, they had given to the Plaintiff six other notes which were not paid.
What, then, was there in the opening statement by the counsel for the Plaintiff, in addition to the facts averred in the complaint ? Simply this; an admission that the last six notes were • usurious, and, therefore, void.
What is the legal effect of that admission ? So long as it is law, that the giving of an usurious security for a valid debt does not destroy the debt, or the right to recover therefor, the only effect of the admission was to show that the Plaintiff could not recover by force of the last six notes; that the promise contained therein could not be
enforced;
and,
therefore,
that if
the
Plaintiff could recover at all, it must be for the valid indebtedness which subsisted when those six notes were given.
The argument of the Appellants, upon which alone the non-suit proceeded, is: Although the Defendants were indebted to the Plaintiff, December, 1857, in the sum of $12,000 and upward, there can be no recovery therefor, because the six notes which constituted the ground and evidence of that indebtedness were surrendered and cancelled, and other notes taken for 'the same debt. There can be no recovery on the last notes, because they are usurious and void.
This reasoning overlooks two familiar rules. First, that a debtor, by giving his own notes, payable at a future day, does not satisfy his debt. If the new notes are not paid (whether valid or invalid), the creditor may proceed upon and recover for the original indebtedness as if such notes had not been given; surrendering such notes on the trial. In such case he is none the less entitled, because he states in the complaint the facts constituting the original cause of action, and that such notes were given and not paid. Second, it overlooks the principle that an usurious extension of the time of payment of a valid debt does not impair the creditor’s right to recover therefor. This is illustrated by the familiar practice, under our former technical rules of pleading, of declaring as for several causes of action in separate counts, when, in truth, but one existed; and when usury in the contract of extension appeared, obtaining a recovery for the original cause upon the count upon which it was described.
But it is said that the first notes being confessedly surrendered and cancelled, that operated as a final bar to any recovery upon them, or for the consideration thereof. This is unsound. The surrender and cancellation of a note may, or may not, operate as
a bar to such recovery. That depends upon the intent of the transaction, and the consideration upon which it is done.
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Woodruff, J.
The nonsuit having been granted in this case, upon the Plaintiff’s opening, the facts stated in the complaint
must be taken to be true as alleged, nothing having been conceded ■ such opening inconsistent with the allegations in the complaint, nit, on the contrary, the statement upon which the nonsuit was ordered having in substance reiterated them.
Tt is perfectly settled, that the right to sustain -the action un the facts alleged does not depend upon the prayer for judgment. Any relief to which, upon the facts alleged, the Plaintiff is entitled, the Court should grant when the Defendant has appeared and answered. (Code, § 275; Emery
v.
Pease, 20 N. Y. 62; Marquat
v.
Marquat, 2 Kern. 341.)
The complaint shows that the Plaintiff, as endorsee, held six promissory notes, of $2,000 each, made by the Defendants, which were due and payable, and had been protested for non-payment; and the whole principal and interest, from their respective maturity, was due to the Plaintiff. That, as an extension of the time of payment, the Defendants gave to the Plaintiff, for the same debt, other six notes for $2,000 each, and paid $426, and the Plaintiff delivered to the Defendants the first six notes'. The six notes last delivered as such extension of the time of payment had become payable before the action is brought, and have also been protested for non-payment.
Upon these facts it is clear that a sum of money, to wit, the amount of twelve thousand dollars (besides interest), less the $426, is due to the Plaintiffs from the Defendants. It became payable at the maturity of the first six notes. The time for payment w;as extended in part (whether by a binding contract or not) until the maturity of other six notes, but the debt has not been paid. Primá facie, the last six notes are instruments by force of which the Plaintiff is entitled to recover, but it is not alone by force of those notes that such right of recovery exists; the primary cause and consideration of the indebtedness of which these notes are evidence has not been satisfied. The original evidence of the debt was surrendered, and other notes substituted; but the consideration of the latter is simply the indebtedness, which formed a complete ground of indebtedness before they were given.
It is not essential that the Plaintiff should determine by alie
gation whether it is by
force
of the first six notes, or
by force
of . the second six, that he makes his claim. If, upon the whole transaction stated in the complaint, it is clear that the Plaintiff is entitled to have of the Defendants a sum of money specified, there is a cause of action.
Although the counsel for the Appellants has argued with great ingenuity and skill in support of the nonsuit, and has insisted that the complaint does not state facts sufficient to constitute a cause of action, yet his first subordinate proposition is, that the complaint “ sets out a good cause of action
on the last notes?
And the alleged defect, therefore, lies in the supposed fact that “ the action is
brought
on, as well as to recover, the amount of the
first
six notes.”
It would seem to be enough to say, that the concession that the complaint sets out a cause of action on the
last
notes disposes of the point.
The fallacy of the reasoning is, that it assumes that the action is necessarily to be regarded as brought
upon
either set of notes, to the exclusion of any reference to the others. The action is to recover the debt; the amount of the first six notes is the measure of the indebtedness. The notes successively have been given as evidence of the indebtedness.
It follows, that, so long 'as nothing appeared in the case except what the complaint alleged, there was a plain right to recover just what the Plaintiff claimed to recover. In that view the complaint may have contained matter which was wholly unnecessary ; and the statement, that the Defendants alleged and claimed that the last notes were usurious, may have been unnecessary ; but the substantial fact appeared, that the Defendants were indebted to the Plaintiff in the
amount
of certain six notes, on the surrender of which, they had given to the Plaintiff six other notes which were not paid.
What, then, was there in the opening statement by the counsel for the Plaintiff, in addition to the facts averred in the complaint ? Simply this; an admission that the last six notes were • usurious, and, therefore, void.
What is the legal effect of that admission ? So long as it is law, that the giving of an usurious security for a valid debt does not destroy the debt, or the right to recover therefor, the only effect of the admission was to show that the Plaintiff could not recover by force of the last six notes; that the promise contained therein could not be
enforced;
and,
therefore,
that if
the
Plaintiff could recover at all, it must be for the valid indebtedness which subsisted when those six notes were given.
The argument of the Appellants, upon which alone the non-suit proceeded, is: Although the Defendants were indebted to the Plaintiff, December, 1857, in the sum of $12,000 and upward, there can be no recovery therefor, because the six notes which constituted the ground and evidence of that indebtedness were surrendered and cancelled, and other notes taken for 'the same debt. There can be no recovery on the last notes, because they are usurious and void.
This reasoning overlooks two familiar rules. First, that a debtor, by giving his own notes, payable at a future day, does not satisfy his debt. If the new notes are not paid (whether valid or invalid), the creditor may proceed upon and recover for the original indebtedness as if such notes had not been given; surrendering such notes on the trial. In such case he is none the less entitled, because he states in the complaint the facts constituting the original cause of action, and that such notes were given and not paid. Second, it overlooks the principle that an usurious extension of the time of payment of a valid debt does not impair the creditor’s right to recover therefor. This is illustrated by the familiar practice, under our former technical rules of pleading, of declaring as for several causes of action in separate counts, when, in truth, but one existed; and when usury in the contract of extension appeared, obtaining a recovery for the original cause upon the count upon which it was described.
But it is said that the first notes being confessedly surrendered and cancelled, that operated as a final bar to any recovery upon them, or for the consideration thereof. This is unsound. The surrender and cancellation of a note may, or may not, operate as
a bar to such recovery. That depends upon the intent of the transaction, and the consideration upon which it is done. The complaint and the opening statement here not only show no intent to release or discharge the indebtedness, but that the whole purpose was to continue its existence and recognition, with a new substituted evidence of the Defendants’ liability therefor.
To the suggestion, that the usurer cannot set up his own usury as the ground of abandoning any claim to recover upon the last six notes, and recurring to the original debt, the answer is twofold : First, whether the last six notes were usurious or not, the Plaintiff had the right, when payment thereof was refused, to recur to the original indebtedness. Second, it is the Defendants that avail themselves of the fact of usury.
The Plaintiff admits, it is true, that the usury alleged in the answer of the Defendants existed; but the Plaintiff’s cause of action in nowise depends upon that fact. The very ground upon which the Defendants insisted upon the nonsuit was, that according to the Plaintiff’s admission the last notes were usurious. He stated his motion upon that fact. He cannot complain that the Plaintiff thereupon says, If you deny the sufficiency of the last six notes to entitle me to recover, you drive me to my original cause of action, and that is valid. I admit the usury, but I seek no advantage therefrom. You may rely upon your answer, and my admission of its truth, or not, at your election. If you do not, then I am entitled to recover on two grounds: first, because I produce six notes containing your promise to pay; second, because they were given as substitutes for and in extension of other six notes which were valid and effectual, and, as you have not paid them, I am entitled to recover for the original cause. If you elect to rely on the admission, then I am entitled, because the taking of a usurious security does not destroy the right to recover for its original and prior valid consideration.
In short, the case is one which could not, probably, have arisen under our former technical rules of pleadings. Its peculiarity is exhibited, because now all the facts material to the recovery may be stated in one count or narration. The Plaintiff might,
I think, safely have stated the fact, that the last notes were usurious ; but that Would not have made it any plainer, that, for the money due upon a valid contract, the Defendants were liable. The Plaintiff has set out twelve notes in his complaint, admitting and averring that the last six were given for, and as an extension of, the first six. Why, then, shall he not recover ? Because he admits that the last six are usurious ? That only remits him to his claim by reason of the Defendants’ indebtedness according to the tenor of the first six. Because the first six were surrendered and cancelled
%
That does not extinguish the debt, if there was no actual satisfaction, and the substituted contract is not paid, but was void ; and the Defendants insist on availing themselves of the admission to that effect.
It hardly seems necessary to cite authorities to these views; but those cited in the opinion of the Court below, and more fully by the counsel for the Respondent, seem to me to be quite conclusive, if the reasoning upon principle be not satisfactory. (See particularly, Rice
v.
Welling, 5 Wend. 595 ; Hughes
v.
Wheeler, 8 Cow, 77; Vilas
v.
Jones, 1 Comst. 274; Hill
v.
Beebe, 3 Kern. 556, and cases cited ; Gregory
v.
Thomas, 20 Wend. 20; Farmers and Mechanics’ Bank
v.
Joslyn, 37 N. Y. 353.)
The order of the General Term of the Supreme Court granting a new trial must be affirmed, and judgment absolute rendered for the Plaintiff, in pursuance of the Defendants’ stipulation.
All affirm.
Judgment affirmed.
JOEL TIFFANY, State Reporter.