
    Charles H. Whedon, App’lt, v. James Hogan, Impleaded, etc., Resp’t.
    
      (New York Common Pleas, General Term;
    
    
      Filed May 7, 1894)
    
    1. Bills and notes—Usury.
    The purchaser of apcommodation paper, at a usurious rate, is not excused by reason of his lack of knowledge of its character, even though the payee represents that it is business paper
    2. Same—Estoppel—Certificate.
    A certificate, by the maker and payee, as to the genuineness of their signatures does not create an estoppel
    Appeal by the plaintiff from a judgment of the district court in the city of New York for the ninth judicial district, rendered by the justice of the eleventh judicial'district, acting in the absence of the justice of the first mentioned district court, without a jury, in favor of the defendant, James Hogan. The opinion "states the nature of the action and the material facts.
    
      Frank Moss, for app’lt; Percy L. Klock, for resp’t.
   GIEGERiOH, J.

This action was brought upon the following promissory note :

“$100. | New York, Jan. 24, 1893.
Three months after date, I "promise to pay to the'order of W. H. Ruffhead, One hundred dollars at No. 36 Beekman St., New York city. Value received. James Hogan.”

which Ruffhead transferred to the plaintiff for $80. Judgment by default was rendered against Ruffhead ; but Hogan set up the defense of usury and judgment was rendered in his favor against the plaintiff. The evidence was conflicting as to whether this was an accommodation or a business note ; but the trial justice evidently found, upon this issue, for the defendant, and there is no sufficient ground for disturbing his decision. Kelly v. Walton 6 Misc. Rep. 152 ; 56 St. Rep. 281; Lynes v. Hickey, 4 Misc. Rep. 522 ; 54 St. Rep. 120 ; 24 N. Y. Supp.731; Weiss v. Strauss, 39 St. Rep. 78 ; 14 N. Y. Supp. 776 ; Dempsey v. Paige, 4 E. D. Smith, 219. The rule is firmly established that the purchaser oi; accommodation paper at usurious rate is not excused by reason of his lack of knowledge of its character; Clark v. Sissons, 22 N. Y. 312 ; Eastman v. Shaw, 63 id. 522, 530; see, also, Claflin v. Boorum, 122 id. 385; 33 St. Rep. 640 and cases cited; and even though the payee represents that it is business paper, it is usurious and void as to the maker. Dowe v. Schutt, 2 Denio, 621, 624; Holmes v. Williams, 10 Paige, 326, and cases cited. This makes the question of Ruffhead’s representation, at the time of the sale, that the note was for commissions, immaterial, as between the plaintiff and Hogan. Estoppel is claimed based upon the following letter :

“ New York, Jan. 26, 1893.
Mr. Whedon : Dear Sir: The signature is all right on the note for $100. W. H. Ruffhead, James Hogan.”

which was sent in reply to a note of inquiry from the plaintiff, before he consented to deal with Ruffhead, with whom all his interviews were had. We can see in this no more than what, upon its face, it purports to be, a certificate to the genuineness of the signatures. Another letter and a conversation between plaintiff and Hogan are also relied upon ; but both were subsequem to the discounting of the note and do not appehr to have influenced the plaintiff to his detriment

The judgment should be affirmed, with costs.

Bischoff, P. J., concurs.  