
    Susan Hamilton, as Administratrix, etc., App’lt v. Catharine Brennan, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 15, 1895.)
    
    Usury—Bonus.
    Where a loan represented by a note is made in pursuance of a usurious- and unlawful agreement, such agreement cannot be validated, if once proven, by the fact that a third person for whose benefit the note was made, instead of the maker, undertook to comply with its terms and made the illegal payments, as called for by such agreement.
    Appeal from a j udgment, dismissing the complaint, entered on the decision of the judge after a trial without a jury.
    
      Lelos McCurdy, for appl’t; Bernard J. Tinney, for resp’ts.
   O’Brien, J.

The action was brought to recover upon a promissory note for $1,000, made by the defendant. The making of the note, and the fact that it has not been paid, are admitted, but the defense of usury is pleaded. . The only question presented to the court below was as to whether or not the loan represented by the note was made in pursuance of a usurious agreement. The court found as facts that the note was the result of an agreement entered into, wherein the plaintiff’s intestate agreed to loan to the defendant the sum of $1,000, for which the latter was to pay $50 bonus, together with interest at 6 per cent, per annum'; that there was loaned to the defendant the sum of $700 at the time the note for $1,000 was-made, and that thereafter there was paid the $50 bonus and the sum of $60 interest. Upon these findings the court concluded that the defense of usury was made out, and that the complaint should be dismissed.

It will thus be seen that the question was purely one of fact. • The only witness upon the question of the agreement between the parties at the time the loan was made and the note given was the husband of the defendant,-who in answer to the question as to whether there was any talk or conversation between the defendants and the intestate “as to any money, or amount of money, which was to be paid"to him for the use of that money,” answered: “Yes, sir; six per cent, interest and $50 bonus.”

And in response to further questions he testified that the $50 was subsequently paid by him, and that, just prior to the making of the note, the only money received was.$700. There was no contradiction of this testimony, and although, on cross-examinatian, it appeared that the money in fact was borrowed for the benefit of the defendant’s husband’s who out of his own moneys paid the bonus, the court was justified in .finding that, at the time or just prior to the making of the note, the-consideration therefor was the agreement already detailed.

With such testimony uncontradicted in the case, it cannot be said that the findings made by the learned trial judge upon the questions of fact were unwarranted. But, to avoid the conclusion reliance is placed upon the circumstance appearing that the bonus was subsequently paid, not by the wife, but by the husband, out of his own moneys. This we do not, however, record as destroying the legal conclusion which was drawn from the facts found, because, though the burden which was placed upon the defendant of paying a $1,000 note in consideration of a loan of $700, and, in addition thereto, of paying six per cent, interest on the amount of the note, together with the bonus of $50, was assumed in part by the husband, this does not destroy the vice inherent in the agreement itself. ■ x

Where, therefore, as here, .upon uncontradicted evidence, the court has found that the loan represented by the note was in pursuance of a usurious and unlawful agreement," such agreement could not be validated, if once proven, by the fact that the husband, instead of the wife, undertook to comply with its terms, and made illegal payments, as called for by such agreement.

We think the judgment should be affirmed, with costs.

All concur.  