Van Sickle v. Palmer

Action to foreclose mortgage; defense, usury, in that the plaintiff retained ten per cent of the principal at the time of the loan as additional and usurious compensation.-

On the trial before the referee, the defendants introduced one Greene as a witness. Greene and his partner were attorneys, who *614had to do with the transaction, and the question was whether they were the attorneys of the lender or borrower, it appearing that they had deducted the ten per cent at the time of the transaction, and it being insisted by the defendants that they had done this for the benefit of the plaintiff.

The referee excluded several questions put to the witness Greene, and the defendants duly excepted. From a perusal of the testimony the question of the plaintiff’s interest in the ten per cent would seem to depend upon the veracity of Greene’s statement, or that of other witnesses, received on the part of the plaintiff. And notwithstanding the written paper which the defendant signed, stating that he had employed Greene’s law firm for the purpose of the loan, and agreed to pay them the ten per cent, it was still competent for the defendant to show by Greene what had been done with that money. If Greene was defendant’s attorney, as the plaintiff claims, there was no privilege between plaintiff and Greene, and the written paper is not in its statement conclusive on the defendant. Van Sickle, who was Greene’s partner, was fully examined on behalf of plaintiff, and the defendant was, therefore, entitled to Greene’s version of the transaction.

For the error in rejecting the evidence of Greene, the judgment must be reversed and a new trial ordered at special term, costs to abide event.

Judgment accordingly.