
    MOSES v. McDIVITT.
    
      City Court of Brooklyn; General Term,
    April, 1876.
    Attorney and Client.—Cqsts.—Usury.
    Defendant in an action on contract might have pleaded usury, but elected not to do so, and suffered default, with an agreement that the judgment should be cancelled immediately, if he would give his bond and other securities for its amount, and no application was made in that action for relief from that judgment. Meld, that he could not defend an action on the bond so given, on the ground of usury in the original contract..
    .An attorney purchasing a thing in action with the intent of suing on it, though only on a certain contingency, violates the statute prohibiting attorneys, &c., from buying rights of action. 3 5. S. 388, § 71.
    No costs of appeal will be allowed where the parties have made no provision for any in a stipulation to abide by the decision of appellate court in a certain contingency, which did not happen.
    Appeal by plaintiff from a judgment and order.
    The action was brought by Raphael J. Moses, Jr., against John R. McDivitt.
    On May 3, 1872, one Washington Ritter loaned $2,500 to the defendant, John R. McDivitt, who gave his note for that amount with interest, payable in one year. At or about the same time he gave four additional notes, each for the sum of $31.25, as an extra payment of five per cent, over lawful interest for the loan. One of these small notes was paid, and the other three were exchanged for three others similar to the first, except that they were made payable to Henry T. Ritter instead of to Washington Ritter.
    In July, 1872, Washington Ritter loaned to the defendant the further sum of $1,500, also on usurious interest. The note taken for this loan was exchanged in January, 1873, for two notes of $767.50 each. In the following May, Washington Bitter commenced a suit on all these notes, and on August 7, 1873, obtained a judgment by default, for $4,159.37, being principal, interest and costs of all said notes. On the same day this judgment was satisfied of record, and the defendant gave a bond and other security in satisfaction thereof.
    The defendant claimed that this judgment was obtained by default, and the bond, &c., given in pursuance of the advice of Baphael J. Moses, Jr., the plaintiff, who at that time was his attorney and legal adviser, and whom he had retained to defend the action because of usury.
    The plaintiff afterwards bought the bond thus given, and brought this action thereon.
    The answer alleged that he purchased it with the intent and for the purpose of bringing a suit thereon, in violation of the statute; also set up the defense of usury.
    The cause was tried before Judge Beyítolds and a jury, and under the charge of the court, a general verdict was rendered in favor of the defendant, based on the first defense.
    Judgment was not entered upon the second defense, but for the purpose of having it reviewed by the general term, the judge charged the jury in respect thereto, and, in addition to the general verdict, they found specially in favor of the defendant on all the issues.
    The parties stipulated that the defense of usury should first be decided, and that if such defense was determined in favor of the defendant, then he should have judgment absolute upon the merits against the plaintiff.
    
      Raphael J. Moses, Jr., in person (Edward Thorn), for appellant.
    I. As to defense of usury, cited: Cuyler v. Santvoord, 13 Barb. 339, 344 ; DeWolf v. Johnson, 10 
      Wheat. 391; Wright v. Wheeler, 1 Campb. 165, note; Barnes v. Hedley, 2 Taunt. 184; 1 Edm. Stat. at Large, 725, §§ 2, 3, 5, 6, 7; Freeman on Judgm. § 217; Thatcher v. Gammon, 12 Mass. 267, 270 ; Flint v. Sheldon, 13 Id. 443; Harning v. Castor, cited in Earl of Oxford’s Case, near beginning of 1 Rep. in Chan.; Middleton v. Hill, 2 Cro. Eliz. 588; Bush v. Gower, 2 Strange, 1043; Cooke v. Jones, 1 Cowp. 728 ; Fisher v. Banks, Cro. Eliz. 93; Rowe v. Bellafeys, Siderfin, 182; Bearce v. Barstow, 9 Mass. 48; Tyler on Usury, 399; Cromwell v. Delaplaine, 5 N. Y. Leg. Obs. 226; Tuthill v. Davis, 20 Johns. 287; Lansing v. Eddy, 1 Johns. Ch. 50; Jackson v. Dominick, 14 Johns. 442; Ord. on Usury, 93-103; Footman v. Stetson, 32 Me. 19; French v. Shotwell, 20 Johns. 667, affi’g S. C., 5 Johns. Ch. 565; Story's Eq. § 131; Gibbons v. Caunt,, 4 Ves. 840.
    II. As to the statutory defense : Van Rensselaer v. Sheriff, 1 Cow. 458; People v. Walbridge, 6 Id. 512 ; Baldwin v. Latson, 2 Barb. Ch. 306; Mann v. Fairchild, 3 Abb. Ct. App. Dec. 152; Warren v. Helmer, 8 How. Pr. 421; Ramsay v. Gould, 57 Barb. 408; Bristol v. Dann, 12 Wend. 144; Warner v. Paine, 3 Barb. Ch. 630 ; Brotherson v. Consalus, 26 How. Pr. 213; Hill v. Gird, 7 Hill, 586, 590; Benj. on Sales, 236; Hammett Linneman, 48 N. Y. 399 ; Leger v. Bonnaffe, 2 Barb. 475.
    III. Where the primary or controlling intent is. lawful, the secondary, conditional, contingent intent, will not be regarded. Duffin’s case, Rus. & Ry. C. C. Res. 367; Rex v. Boyce, 1 Moody C. C. 29; Rex v. Cox, Rus. & Ry. C. C. Res. 362; Rex v. Phillips, 6 East, 473; 1 Chit. Crim. L. 233.
    
      Reed & Drake, for respondent.
    I. As to defense of usury, cited: Tuthill v. Davis, 20 Johns. 287; Belding 
      v. Pitkin, 2 Cain. 147; Hunt v. Knickerbocker, 5 Johns. 334; Borden v. Fitch, 15 Id. 121.
    
    II. As to bonds being given by plaintiff’s advice: La Farge v. Herter, 9 N. Y. 243; Freelove v. Cole, 41 Barb. 318; Wheaton v. Hibbard, 20 Johns. 290; Story Eq. 308-324; Starr v. Vanderheyden, 9 Johns. 253; Evans v. Ellis, 5 Den. 640 ; Wendell v. Van Rensselaer, 344; Howell v. Ransom, 11 Paige, 538; Seymour v. Delancy, 3 Cow. 527; Van Horne v. Everson, 13 Barb. 526 ; Bergen v. Udall, 31 Id. 9 ; 7 Sim. 539 ; 27 Eng. L. & Eq. 100 ; Ford v. Harrington, 16 N. Y. 285; Sears v. Shafer, 6 Id. 268-272 ; Reigal v. Wood, 1 Johns. Ch. 402; Dobson v. Pearce, 12 N. Y. 165.
    III. As to. defense that plaintiff purchased bond in violation of statute: 2 R. S. 288, § 71; People v. Smith, 5 Cow. 258 ; Baldwin v. Latson, 2 Barb. Ch. 306; Austin's Juris. §§ 621-625.
   Neilson, Ch. J.

We are of opinion that upon the evidence the jury were justified in finding that the two loans by Washington Ritter to the defendant were made under and in pursuance of the corrupt and usurious agreements alleged. But notwithstanding the fourth finding of the jury, we regard the judgment in satisfaction of which the bond in suit was given, as putting an end to any defense that might have been interposed by reason of the prior contracts. The judgment was obtained in the usual course, upon the summons and complaint duly served. The arrangement under which that suit was brought and the judgment obtained, was not in and of itself usurious or in contemplation of further violations of the statute, but, at most, was intended to silence complaints as to the past and place the rights of the parties upon a proper basis. The defendant might have contested the claim in that suit on the ground of usury, but made his election not to do so.

Under the circumstances, we think he is concluded by that election. No application was made by him in that action to be relieved in respect to that judgment.

The other branch of the defense goes to the right of the plaintiff to prosecute the action. He was an attorney and counselor at law when he obtained the bond' on which the action was brought. The jury have found that he purchased it “with intent and for the purpose of bringing a suit thereon,” and consequently contrary to the statute. We think that the proof of that was quite sufficient.

We are not inclined to extend the. statutory prohibition beyond the spirit and terms of the act or of the construction given to it by the adjudications. An attorney is to be protected when he makes such a purchase for a legitimate purpose, as, for instance, to protect his interests in property on which the claim maybe a prior lien, or to protect himself as a creditor. In the absence of the mischievous intent and purpose reprobated by the statute, the purchase is harmless.

The question raised by the exception to directions given on the coming in of the jury for specific instruction is earnestly pressed on our attention by the plaintiff. The jury wished to learn whether, if the plaintiff’s intention was to sue the bond in a certain contingency, that would be a violation of the statute. The learned judge answered that inquiry in the affirmative.

The point is thus sharply presented, whether, to bring a case within the evil against which the legislature intended to guard, the purchase must be made by an attorney for the sole, simple or naked purpose, of bringing a suit thereon. Contingencies, anticipated or not, may well attend every purchase of the kind. The attorney may intend to bring his action unless payment within a reasonable time be made, or if the debtor persists in carrying out an avowed purpose of disposing of his property, or of removing from the State, or if he refuse to retire from an election in which both he and the attorney are rival candidates. We apprehend that the existence of any such contingency qualifying the intent with which the attorney makes the purchase would not take the case out of the statute. He may buy the claim with the objectionable intent and purpose, and that intent and purpose may characterize the act, however many other possibilities may attach; the contingency is a mere incident. If the intent and purpose must be absolute and unqualified, it would be easy to evade the statute by conjuring up or attaching contingencies, and the attorney might purchase claims, bring suits, and inflict costs upon the debtor without restraint. In this instance, the'jury have found that the bond was purchased with the intent charged.

The instructions given to the jury must have helped them to a proper understanding of the questions submitted, and were, it seems to us, correct.

The judgment and orders appealed from should be affirmed.

At a later day the counsel attended, and were heard as to the question of costs, arising on the stipulation.

Neilson, Ch. J.

As we construe and understand that stipulation, costs of the appeal were to be allowed in an event which has not' happened. But on the determination which we have made, judgment of affirmance was to be entered, but the stipulation is silent as to costs. We think that the attorneys by their special arrangement have determined the question, and that no costs of this appeal should be allowed to the prevailing party.

McCue, J., concurred.  