
    Martin Bennett, Respondent, v. Moses Ginsberg and Max Kobre, Appellants.
    Second Department,
    November 18, 1910.
    Usury — charges for procuring loan —- trial—waiver of portion of claim alleged'to be usurious'—erroneous charge.
    A lender not intending to make a usurious contract may be paid for bis trouble, time and expense in collecting the money for" the loan, or the expense of procuring it.' ■
    Where in an action on a promissory note for §6,000 the maker, who received only §5,500 for the note, defends on the ground of usury, it is error to charge that the jury may find a verdict .for §5,500 owing to the fact that the plaintiff has waived his claim for the balance of the note. This, because under the defense - it is for the jury to say .whether the maker owed the face value, of the note or nothing. .
    Appeal by the defendants, Moses Ginsberg and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office'of the clerk of- the county of Kings on the. 19th day of November, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on .the 23d day of November, 1909, ■ denying. the defendants’ motion for a new trial made upon the • minutes. ' . •
    
      ■Samuel A. Telsey,for the appellants.
    
      .Robert H. Roy, for the respondent.
   . Thomas, J.:

To the plaintiff Ginsberg delivered his promissory note for $6,000, bearing no interest,-payable to himself, and indorsed by himself and Kobre,' and payable one month after its date, and for this received "plaintiff’s' check for $5,500. Was usury taken? The plaintiff’s brief describes the transaction as' follows: “ Ginsberg' applied to him for a loan on. several occasions, and . * * * he told Ginsberg he did not have the .money to make the loan;. * * * Ginsberg finally came to him and pleaded with him to help him out as he- was in danger of being ruined- if he could not procure the money, and promised him five hundred * ■* * dollars for his services in procuring the money.- Being- unable himself, to furnish security to the bank upon which to obtain a loan of money Bennett went to his wife and said to her in effect: If. you will let me use your stock as collateral with the bank to procure a loan of money that I want to advance to Ginsberg, I will give you the five hundred * ■* * dollars which he was willing to pay me for procuring him a loan.’ Thereupon his wife let him have her stock.” Thus expressed, the plaintiff agreed to loan $5,500, without interest, and was to be paid $500 for getting it to lend. He individually was the lender. The money loaned was his, although borrowed from the bank upon a note made by himself and wife, and secured by stock, in part her property and in part his own. The wife was in no way privy to the transaction, and had no title to the money loaned or the note received. The plaintiff was willing to give her the money Ginsberg “ was willing to pay ” him “ for procuring him a loan.” From whom was the loan procured? From, the plaintiff, not from the wife. She helped the plaintiff raise the money by lending her credit, and for that was to receive the $500, but the money was'his own, and lie used it as his own. Hence there is no question of agency. A lender, not intending to make a usurious contract, may be paid for his trouble, time and expense in collecting the money for the loan (Thurston v. Cornell, 38 N. Y. 281), or for the expense of procuring the money. (Morton v. Thurber, 85 id. 550.) Was the $5.00 to be paid solely for services ? Was no part of it intended for interest, .usurious-or otherwise? This court would consider whether the verdict was against the weight of the evidence if it did not appear that the jury had not passed upon the matter. The jury deliberated without agreement, and made inquiry whether it could bring in a verdict for the face of the check, and thereupon the plaintiff waived the alleged usurious sum. Then the jury was recalled and charged : “ In answer to your inquiry: 6 Can the jury bring in a verdict for the face value of the check, five thousand five hundred dollars ? ’ I state that the plaintiff has waived the difference between five thousand five hundred and six thousand dollars, and, therefore, you can.” To this defendants excepted. The verdict was for $5,500. It was the duty of the jury to decide whether the defendants owed -$6,000 principal or nothing. There was an evident division, and a compromise considered, and inquiry made whether the court would permit the deduction. The court sanctioned it, and by sanctioning may have seemed to the jury to countenance a compromise. It. is-not a question of the right of the plaintiff to reduce his claim, but of-permitting the jury to leave-the question of usury undetermined, and to do a conceived equity. - It was as if the plaintiff had said, If you will, find for $5,500 I will remit this item over which the- controversy exists,” and the court allowed such statement to be considered. Such a verdict on its face shows that the issue of usury was not decided. • It is no answer to assert, nor is it a known fact, that the defendants were thereby saved the payment of $500. If the jury had been held to tlie stefn duty of finding the fact whether the debt was usurious no verdict against the.defendants might have resulted. It found that'the defendants did not owe the $500, and if they did not owe that they did not owe the $5,500. This inevitably shows that the jury shunned the question, as well it might, as it was induced tó do so. -

The judgment and order should be reversed and a new trial granted, costs to abide the event. , '

Woodward, Burr, Rich and Carr, JJ.-, concurred.

Judgment and order reversed and new trial granted, costs to abide the event. ' ■ • . .  