
    The Union Credit & Investment Co., Appellant, v. The Union Stock Yard & Market Co., Respondent.
    (Supreme Court, Appellate Term,
    February, 1905.)
    Usury — Personal defense.
    In an action upon an assigned claim for wages, the defendant may not plead that the assignment was made to secure a usurious loan.
    Appear by the plaintiff from a judgment, rendered in favor of the defendant in the Municipal Court of the city of New York, second district, borough of Manhattan.
    Caesar Simis, for appellant.
    Albert B. Quencer, for respondent.
   Scott, J.

Assuming that the agreement between plaintiff and Coleman wás a mere cloak for an usurious loan, I am at a loss to see how the defendant can avail itself of the defense. In this State an usurious contract is not void per se but merely voidable at the option of the borrower, or those in privity with him. Williams v. Tilt, 36 N. Y. 319; Chapuis v. Mathot, 91 Hun, 565. And even as to privies the right to set up a defense of usury may be cut off by the waiver of the original party. In many cases, some of which are cited by respondent, persons having claims or liens subordinate to the usurious contract have been permitted to set up usury, but in every case they have shown a direct interest in having the usurious transaction avoided. The defendant here has no such interest. It owes a certain amount of money by way of wages earned by Coleman. Whether this sum is paid to Coleman or to his assignee cannot interest or affect defendant in any way. Bor aught that appears Coleman may be quite willing to waive the usury, and allow the money to be paid. The case in Missouri upon which respondent much relies (Tolman v. Union Casualty & Surety Company, 90 Ho. App. 274), seems to turn on the phraseology of the Missouri statute which declares that a pledge or mortgage given to secure an usurious debt shall be invalid and illegal. The question of the right of the defendant to- raise the defense of usury does not seem to have been raised or considered.

Giegerich and McCall, JJ., concur.

Judgment reversed and new trial granted with costs to appellant to abide event. '  