Chatham Bank v. Betts

I entirely agree with the learned Justice BoÍbertsoít, who heard and decided the motion at Special Term, that there is not even a conflict of evidence in this case, upon the question of usury, the only defense urged upon the argument of the appeal. The testimony fully warranted the Jury in finding that there was no usury in the transaction between Potter and the defendant. It is clear, I think, that Potter retained the sum. charged as having been taken for usury, as a compensation for procuring the note to be discounted at the plaintiffs’ bank for Thomas. Such compensation being retained both as a commission for procuring the money, and as payment for lending the agent’s credit is not usury. (Van Duzer v. Howe, 21 N. Y. R., 531.)

The verdict cannot be disturbed on the facts of the case. The only exception is to the refusal of the Judge to charge “ that the facts in the case, as they are disclosed in the evidence, render the note usurious and void; and the defendant is entitled to a verdict.” To have so charged would have been error.

Whether the note was tainted with usury, was a question of fact for the Jury, and it would not be proper for the' Court to take that question from the Jury, and pronounce upon it as a matter of law. The taking of usury must be in pursuance of a corrupt agreement, express or implied; and it is difficult to conceive of a case, tried before a Jury, where the Judge would be justified in depriving a party of the tight of having it passed upon by them, whether there was such corrupt agreement, especially; when it is to be made out from circumstances, and must be determined in a great degree, by the intent of the parties.

The question of fact was fairly submitted to the Jury, and they were instructed, that if they found such usurious agreement was made between Thomas and Potter, as was *558claimed by the defendant, they must find a verdict for the defendant.

For these reasons, and for those more forcibly and clearly expressed by the learned Justice who gave the opinion at Special Term, I am of opinion the judgment and order appealed from should be affirmed.

Judgment accordingly.