
    WAYNE COUNTY SAVINGS BANK v. LOW.
    
      N. Y. Court of Appeals;
    
    
      September, 1880.
    [Affirming 6 Abb. New Cas. 76.]
    Bills and Notes.—Law op Place.—Usury.—Conflict of Laws. —Deposit in Post-Office.—Evidence.
    Evidence that negotiable paper, pursuant to authority intentionally given by its maker, was first negotiated and had its inception in a State by the law of which it was not usurious, in performance of a contract there made by him with residents of that State, takes it ■ out of the usury laws of this State, even though it was signed, mailed, and expressly payable in this State.
    
      Thus, where a resident of this State, in pursuance of an agreement made in Pennsylvania, for the renewal of a note held by a Pennsylvania bank, signed in this State a note which had been sent to him through the mail by the bank, and which was payable ac a New York bank, and sent the note back by mail to the Pennsylvania bank, who, with his consent, discounted it at a rate allowed by the laws of Pennsylvania, but not by those of New York,—lie Id, that the note was not usurious.
    The mailing of a new note for signature in response to a request for a renewal and that a new note be sent, constitutes an acceptance of the proposal for renewal, and renders the agreement to renew complete; and the place of the mailing is the place of the contract.
    A defense cannot be availed of when the facts on which it is based are not found by the referee, nor requested to be found, and contrary findings are not excepted to.
    
      Dickinson v. Edwards, 77 N. T. 573; S. 0., 7 Abb. New Gas. 05, rev’g 2 Id. 300; and Jewell v. Wright, 30 N. Y. 259,—distinguished. Tilden v. Blair, 21 Wall. 241,—approved.
    Appeal from a judgment of the court of common pleas affirming a judgment entered upon the report of a referee.
    The Wayne County Savings Bank, of Honesdale, Pa., sued Henry R. Low, on a note of which the following is a copy.
    “$2,000. Middletown, N. Y., January 20, 1875.
    “ Six months after date, for value received, I promise to pay H. C. Hand, cashier or order, at the First National Bank of Middletown, N. Y., two thousand dollars, without defalcation.
    “H. R. Low.”
    This note was one of a series of renewal notes. The original note was made for the accommodation of one. Smith, who had it discounted at the plaintiff’s bank in Pennsylvania. Some question was raised by the defendant as to Smith’s right to use the note at the time and in the manner he did, but the referee found that the plaintiff was a bona fide holder for value, and this finding was not excepted to.
    
      The note in suit was given in response to a letter written by the defendant at Honesdale, Pa., and there mailed to and there received by the plaintiff, requesting a renewal of the note it then held. The note in suit was drawn up by the plaintiff at Honesdale, Pa., and sent by mail to the defendant at Middletown, N. Y., for signature. He signed it and sent it back through the mail to the plaintiff also sending a check for $80, which was paid for the extension. Plaintiff thereupon surrendered the old note, and returned it to the defendant. The defense was usury.
    The case was submitted to a referee, who found for the plaintiff.
    The New York Common Pleas, at general term, affirmed this judgment, holding that as the note was discounted in another State, at a rate allowed by the laws of that State, it was valid, although the rate of interest was greater than that permitted by the laws of this State.- Their opinion is reported in 7 Abb. New Cas. 76, where also a fuller statement of the facts is given.
    From this decision the defendant appealed.
    The court of appeals affirmed the judgment, on the grounds stated in the head-note.
     