
    George F. Ditmars et al., as Executors, etc., Resp’ts, v. Frederick B. Sackett et al., App'lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 28, 1895.)
    
    1. Usury—Taking bonus.
    The reservation from, the amount loaned of a part of the principal in excess of the interest is usury.
    2. Same—Agent.
    The taking of a bonus by the agent or attorney of a lender, without the knowledge or acquiescence of the latter, does not charge him, and the burden of proof of such fact is with the party charging usury.
    3. Same—Evidence.
    In replevin by the executor of a mortgagee to recover the mortgaged ' chattels, where the defense was usury in the mortgage, ■ evidence that the brother of defendant complained of the usury to plaintiff's testator, who said that defendant had agreed to it, is sufficient to present for the consideration of the jury the question of fact whether.or not the loan was made by plaintiff's testator pursuant to a corrupt agreement, in violation of the statute relating to usury.
    4. Witness—Section 829 of the Code.
    The,personal transactions or communications between a witness, having an interest in the result, and a decedent, to which the inhibition applies, includes a transaction or communication of the decedent with another in the presence of the witness, on the subject to which his interest relates, although the latter takes no actual part in it.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    William S. Moore, for pl’ffs;
    Frank C. Cushing, for def’ts.
   BRADLEY, J.

The action is replevin to recover the possession of certain personal property, mentioned in and transferred by a chattel mortgage of date ¡November 16, 1891, made by the defendant Frederick B. Sackett to the plaintiff’s testator, to secure the payment of a promissory note of the same date, made by the defendants Frederick B. Sackett and W. Gilmore Sackett, for $150, payable to the testator three months after its date, with interest. The defense alleged is usury. The trial court refused to submit any question to the jury, and directed a verdict for the plaintiffs. , Exceptions were taken by the defendants.

The purpose of the note and mortgage was to secure the payment of a loan of money by the plaintiffs’ testator to the defendant W. Gilmore Sackett. The amount received by him was $140. The alleged usury was in the reservation by the lender of $10 in excess of the legal rate of interest. And the evidence on the part of the.defendant was to the effect that after the testator had promised to make the loan on such security, and on the day of the date of the note and mortgage, W. Gilmore Sackett met the plaintiffs’ testator and George F. Ditmars at the office of the latter, and that such attorney handed to that defendant $140, and no more, as the loan upon the security so given. The negotiation for the loan of $150, shortly prior to the time of the transaction last above mentioned, was had by Garry V. Sackett, a brother of W. Gilmore Sackett, with the plaintiffs’ testator. He was not present at the time the loan was made. His evidence is: That a few 'days thereafter he met the testator, and said to him: “You took ten dollars on that loan the other day. I came over here to-day to settle that matter up with you, and it must be settled.” That the testator answered, “Well, your brother agreed to pay the ten dollars.” That the witness added: “It don’t make any difference whether he did or not; they can’t afford to pay usury; and they won’t submit to it. You must straighten it up.” That the testator then said: “Then I won’t have any more to do with it. Go and see George.” It does not necessarily appear that the testator was present when the money was handed to Sackett by the attorney George F. Ditmars, but the inference that he was present is permitted by the evidence before referred to, that W. Gilmore Sackett met him in the office of the attorney on that day, and saw something take place between them. The evidence of the witness offered to prove what did take place there between the testator and George F. Ditmars was excluded, as within the inhibition of section 829 of the Code. The facts which the evidence tended to prove were substantially that, pursuant to an understanding that the testator should loan to Sackett $150 upon such security, the note and mortgage were received by him and the loan made through his attorney, who advanced only $140; and, when the attention of the testator was afterwards called to the fact, he said the borrower “agreed to pay the ten dollars.” This not only tends to prove that he was cognizant that $10 of the amount of the note was withheld from Sackett, but the inference is permitted that the plaintiff’s testator was a party to an agreement with the borrower that $10 in excess of the legal rate of interest should be, as it was, reserved and taken from the loan. The view taken of the evidence is such that it presented for the consideration of tin jury the question of fact whether or not the loan was made by the plaintiffs’ testator pursuant to a corrupt agreement, in violation of the statute relating to usury. Catlin v. Gunter, 11 N. Y. 368.

It is true, as urged by the learned counsel for the plaintiffs, that the takii g of a bonus by the agent or attorney of a lender, without the knowledge or acquiescence of the latter, does not charge him, and that the burden of proof of such fact is with the party charging isury. Condit v. Baldwin, 21 N. Y. 219; Philips v. Mackellar, 92 id. 34. And it is essential to the support of the defense that Tie principal is chargeable with such knowledge or acquiescence as to the time the loan is made. Stillman v. Northrup, 109 N. Y. 473; 16 St. Rep. 417; Baldwin v. Doying, 114 N. Y. 452; 23 St. Rep. 759. It could with much force have been urged on the part of the plaintiffs that the proof would have been insufficient to warrant that imputation against the plaintiffs’ testator in the absence of the evidence of the subsequent interview with him, at which he stated in reference to the loan that the borrower agreed to pay the $10. The only reasonable import of this statement is that such agreement was made before the loan was perfected. The statement, as testified to by the witness, does not purport to have been founded on information or otherwise than upon personal knowledge of the plaintiffs’ testator.

When this case was here on a former review, the new trial was granted for reasons not prejudicial to the defendants upon this review. Ditmars v. Sackett, 81 Hun, 317; 62 St. Rep. 683. The view taken renders it unnecessary, for the purposes of the result, to consider the questions arising upon exceptions to the exclusion of evidence offered by the defendants. Those rulings were mainly to the effect that the witness, being one of the defendants, was incompetent, by force of section 829 of the Code, to testify to the facts sought to be proved by him. It is now quite well settled that the personal transactions or communications between a witness having an interest in the result and a decedent, to which the inhibition applies, include a transaction or communication of the decedent with another in the presence of the witness, on the subject to which his interest relates, although the latter takes no actual part in it. In re Bernsee’s Will, 141 N. Y. 389; 57 St. Rep. 601.' The question whether any of the evidence offered and excluded on that ground was admissible is not considered.

The motion for a new trial should be granted; costs to abide the event.

All concur.  