
    FRANZ O. MATTHIESSEN, et al., as Executors, etc., Respondents v. JOHN W. KOHLSAAT, Appellant
    
      Usury, when defence of must be pleaded.
    
    The action is brought to recover the sum of $3,000 which the complaint alleged was loaned by the plaintiffs' testator on or about April 15, 1SS5, to the defendant to be repaid on or before May 1st following. The answer contained a general denial. On the trial the plaintiffs offered, and the court received, in evidence against the defendant’s objection a paper in the following words : “ New York, April 15th, 1885. Received from W. A. Wilchers, Esq., three thousand dollars for which I agree to pay him April 30, 1885, $3,250. Jno. W. Kohlsaat.” Against like objection the court admitted in evidence a letter from the defendant to plaintiffs’ testator, dated May 16, 1885, containing the following words : ‘' Herewith please find 23 Mexican State Bonds of the face value of $1,000 each, as collateral security until payment of the $3,250 for loan of $3,000, April 15, 1885.” Plaintiffs then rested and defendant moved to dismiss the complaint on the ground that no evidence had been shown within the pleadings and that the alleged agreement as shown by the note and letter was void for usury. The court denied the motion and subsequently directed a verdict in favor of the plaintiffs for three thousand dollars and interest.
    
      Held, that the defence of usury was unavailing to the defendant because not pleaded, while there was evidence from which the jury, if the issue had been made, might have found that defendant on obtaining the loan had further agreed to pay a usurious rate of interest, usury did not conclusively appear as matter of law from the evidence.
    Upon the defendant’s contention that the evidence offered did not sustain the transaction alleged in the complaint, but if anything an altogether different transaction, Meld that there was not a fatal variance between the proof and the allegations of the complaint.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.
    
      Decided October 10, 1891.
    Appeal from a judgment entered upon a verdict for plaintiffs as directed by the court. The facts sufficiently appear in the head note.
    
      
      Burnett & Whitney, attorneys, and Edward B. Whitney of counsel, for appellant.
    
      Martin & Smith, attorneys, and George A. Strong of counsel, for respondents.
   Per Curiam:

The appeal is from the judgment only, and consequently only questions of law can be reviewed. At the trial no claim was made that there was any question for the jury, nor was there a fatal variance between the proof and the allegations of the complaint. The action was brought to recover $3,000, being the amount of a loan made to defendant by the plaintiffs’ testator, and the complaint alleged the making of the said loan and a promise on the part of the defendant to repay the $3,000. The proof established the allegations of the complaint and incidentally some evidence was introduced from which the jury, if the issue had been made, might have found that the defendant, on obtaining the loan, had further agreed to pay a usurious rate of interest. But the only defence pleaded was a general denial and usury did not conclusively appear as matter of law from the evidence adduced by the plaintiffs. Under the circumstances stated the defence of usury was not available to the defendant. Millbank v. Jones, 28 N. E. Rep., 31, and cases there cited.

The record discloses no error, and the judgment must therefore be affirmed, with costs.  