
    Daniel H. Botsford, Respondent, v. Cotton W. Bean, Appellant.
    
      Action to recover on iisurious notes — a recovery cannot be had on a valid note-(not set up in the complaint) for which the usurious notes icere given.
    
    In an action upon two promissory notes, to which the defense of usury is interposed, it is error for the court to charge the jury that if they should find’ tile-notes usurious they might render a verdict in favor of the plaintiff for the-amount of a concedcdly valid note in renewal of which the notes in suit had ' been given, where the complaint contained no reference to the original note and. no amendment thereto was made or sought to be made on the trial.
    Appeal by the defendant, Cotton W. Bean, from a judgment óf the Supreme Court in favor of the plaintiff, entered in the office of ‘ the clerk of the county of New York on the 15th day of November, 1897, upon the verdict of a jury, and.also from an order entered hr said clerk’s office on the 11th day of December, 1897, denying the-' defendant’s motion for a new trial made upon the minutes.
    
      Hector M. Hitchings,. for the appellant.
    
      M. D. Wilber, for the respondent.
   Patterson, J. :

This action was brought upon two promissory notes aggregating $265. The defenses were that the notes were barred by the Statute-of Limitations, and that they were tainted with usury. On the latter defense there was evidence to go to the jury. It was shown-that at the time the notes in suit were given the defendant washable upon a promissory note for $250 held by the plaintiff. That note became due on the 19th of October, 1885, but no interest wag-due on it at that date. The notes in suit were dated the 8th of February, 1886, and when they were given $15 was added to the principal of the indebtedness, represented by the $250 note, upon-which there could only have been then due interest for less than-four months. The defendant swore that the additional $15 wag-given for the renewal of the $250 note. The justice at the trial instructed the jury that if they should find that the $15 was paid-for the renewal of the original note, it constituted usury, but ifr being proven that there was a valid original debt of $250 they were at liberty to go behind the notes in suit and render a verdict in. favor of the plaintiff for the amount of that original indebtedness, A verdict was found for $250 from which it is manifest that the jury regarded the note sued upon as being usurious and followed the instruction of the court relating to the original indebtedness. Counsel for the defendant duly excepted to that instruction and insisted that the plaintiff was entitled to recover only upon the causes of action pleaded and they were specifically upon the two-renewal notes.

The general proposition of law charged by the learned judge waff correct, but was not applicable in this case, for the reason that-nothing is contained in the-complaint with reference to the original indebtedness, and no amendment of the complaint was made nor was an application made on the trial to amend it. On that condition of the pleadings, the plaintiff was not entitled to recover on-' the original indebtedness. (Hansee v. Phinney, 20 Hun, 153.)

The judgment must be reversed and a new trial ordered, witb costs to the appellant to abide the event.

Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ.f concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  