
    Pasquale Caponigri, Appellant, v. Pasquale Altieri et al., Respondents.
    (City Court of New York, General Term,
    October, 1897.)
    Bills and notes — Counterclaim against private banker for double the amount of usurious interest paid.
    Where a private banker brings an action upon a promissory, note, the defendants. may, under allegations that the note was part and parcel of a former usurious note executed and delivered between the same parties, and under the provisions of the Banking Law (Laws of 1892, chap. 689, § 55), and of the Code of Civil Procedure, section 501, interpose counterclaims for double the amount of the usurious interest paid; and, as the right to recover double the amount of such interest is expressly given by the Banking Law, the decisions, made by the Supreme Court of the United States under the identical Federal < statute, to the effect that, in an action, brought in a- Federal court by or against a national bank, such a counterclaim is inadmissible, have no application.
    Appeal from a judgment in favor of defendants, entered upon a verdict and from an order denying a motion for a new trial.
    Charles W. Dayton, for appellant.
    Burr & De Lacy, for respondents.
   Schuchman, J.

This is an appeal from .a judgment in favor of the defendants, entered upon a verdict rendered by the jury, and from an order denying a motion for a new trial made on the judge’s ■minutes.

The action was brought on a note for $1,000 made by the defendant, Pasquale Altieri, to the order of and indorsed by the defendant, Pietro Altieri. The answer admits the making of the note and the indorsement and delivery to the plaintiff, but alleges that the note sued on was a part of the former $3,000 note given in December, 1891, and that the note in suit is part and parcel of the said $3,000 note which was usurious, in that for the forbearance of the payment of the same, "the defendants made to the plaintiff six payments of $150 each, and five payments of $50 each, over and above the legal rate of interest, pursuant to agreements made between plaintiff and the defendants; and further sets up counterclaims for double the amount of the usurious sums, paid as aforesaid, pursuant to section 55 of the Banking Laws of this state, chapter 689 of the Laws of 1892.

• Said section reads as follows: “Every bank and individual banker doing business in this state may take, receive, reserve and charge on every loan or discount made, or upon any note, bill of exchange or other evidence of debt, interest at the rate of 6 per cent, per annum; and such interest may be taken in advance, reckoning the days for which the note, bill or evidence of debt has to run.

The knowingly taking, receiving, reserving ■ or charging a greater rate of interest shall he held and adjudged a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon. If a greater rate of interest has been paid, the person paying the same, or his legal representatives, may recover back Twice the amount of the interest thus paid, from the bank or individual banker taking or receiving the same, if such action is brought within two years from the time the excess interest is taken.”

This section is identical with the federal statute in regard to national banks organized under the act of- Congress * * * approved June 4, 1864. Said chapter of the Laws of 1892 of this state reads further as follows:

“ The true intent and meaning of this section (meaning section 55) is to place and continue banks and individual bankers on an equality in the particulars herein referred to with the national banks organized under the acts of Congress, entitled ‘An act to provide a national currency, secured by pledge of United States bonds, and to provide for the circulation and redemption thereof, approved dune 3, 1864.’ ” •

The plaintiff in this case is a private - or individual banker. Perkins v. Smith, 116 N. Y. 441.

The appellant now raises the point, that inasmuch as our state statute is identical to the federal statute, and inasmuch as the federal Supreme Court has decided, that in an action on a promissory note on which usurious interest has been charged, the penalty fixed by the above statutes, that the borrower can recover from the lender double the amount of the usurious rate of interest paid, cannot be set up as a counterclaim against .the recovery of the loan, or a promissory note representing the loan, and he-relies upon the case of Barnet v. Municipal Nat. Bank, 8 Otto, 555, and National Bank of Auburn v. Lewis, 81 N. Y. 15.

It is true that these cases hold that in an action brought by or against a national bank, organized under the federal statute, such a counterclaim cannot be set up, whether the suit is brought in a federal court or in our state courts, but in the case at bar the counterclaim derives its existence from the above-mentioned state statute, which is subject to the practice, pleadings, and. forms and modes of proceedings in civil causes in this, state, and is between party litigants who are citizens of this state, and therein lies the distinction.

No national bank created by federal authority and subject to federal statutes is a party litigant to this case.

Pursuant to section 501, Code of Civil Procedure, a defendant can set up a counterclaim “ when the cause of- action arises out of the contract or transaction, set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject .of the action.”

And this is so, whether the cause of action is in contract or tort. Cass v. Higenbotam, 100 N. Y. 248; Weston v. Turver, 17 N. Y. St. Repr. 502; Littman v. Coulter, 25 Abb. N. C. 60.

We, therefore, conclude that the counterclaims set. up in the defendant’s answer are and do constitute good and sufficient defenses to-the plaintiff’s cause of action herein.

On the trial the plaintiff. maintained and submitted proof that the $1,000 note in suit was given by the defendants to him in payment of a note of $1,000 which he had indorsed as an accommodation for the defendants, and which was discounted by the Twelfth. Ward bank and had gone to protest, and he was required to and did take up said note from the bank with his own money.

The defendants, however, claimed and submitted proof to the effect that the $1,000 note in suit was part and parcel of a former $3,000 note, on which $1,000 had been paid by them on account, and that for the forbearance of the payment of the said note down to April 3, 1894, the various usurious amounts set forth in the defendants’ answer were paid by them to the plaintiff.

The conflict of evidence thus raised was fairly submitted to the jury by a charge to which no exception was taken (except to that portion which says that the jury may find for the defendants on the counterclaim or affirmative defense), and the judge expressly, in his charge, limited the recovery of the defendants’ counterclaim to the two years prior to April 3, 1894, the commencement of the action, agreeably to the above cited statute.

We cannot say that the verdict is against the evidence, nor against the weight of evidence.

The exceptions taken by the appellant are. fully answered in the eighth point in respondents’ brief, and none of them presents any reversible error.

Judgment and order appealed from affirmed, with costs.

Conlan and Fitzsimons, JJ., concur.

Judgment and order affirmed, with costs.  