
    The People of the State of New York, App’lts, v. John D. Wheeler, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1888.)
    
    1. Criminal law—Forgery—What is not sufficient to constitute CHIMB OP.
    The forgery of an instrument which, if genuine, would be void, is not a crime.
    3. Same—Promissory note—"When void for usury.
    A promissory note, by which the maker promises to pay a sum, with interest on it, at a rate higher than the legal one, is hot necessarily void. Whether or not it is so is dependent on the consideration on which it is founded.
    3. Same—Usury—Positive defense to be established by proof. Usury is a positive defense to be established by proof.
    4- Same—Forgery—What sufficient to constitute.
    The crime is complete if the instrument forged would, if genuine, create a legal liability.
    
      Andrew Hamilton, for app’lts; E. J. Meegan, for resp’t.
   This is an appeal from a judgment in favor of defendant on a demurrer to the indictment.

The indictment is for the making a certain instrument in writing, a promisory note, set forth therein with the endorsement thereon.

The instrument is accurately, or purports to be, an inland bill of exchange on the Farmer’s Bank of Hudson at one year for $750 and interest at seven per cent to order of J. D. Wheeler, purporting to be signed by Norman Coons, and to be endorsed by Chester A. Miller.

The first point taken by the defendant is that, as the instrument purports to bear interest at seven per cent (being dated in 1885), it is usurious and void, and therefore cannot form the basis of a criminal charge.

A note is not necessarily usurious because, on its face, it bears interest at seven per cent. This bill is substantially a promise to pay $802.50 in a year’s time (disregarding days of grace). Such a bill is not necessarily usurious. To make it usurious, it must have been given for a lo.an of money, and must be a promise to pay more than the legal rate for that money. In consideration of $775, received, one may promise topay $750 at seven per cent in one year, and the promise will not be usurious. So in case of a bona fide sale, which is not the coyer of a loan.

In the very able brief of defendant’s counsel, numerous cases are cited holding that the forgery of an instrument which, if genuine would be void, is not a crime. For instance, Cunningham v. People, 4 Hun, 455. But the note or bill set forth in this indictment, if genuine, would not be void. Whether void or not would depend upon its consideration as above explained. Its invalidity depends on some collateral fact. People v. Galloway, 17 Wend., 543.

Whether the note, if genuine, would be prima facie usurious, is not the question here; although we are inclined to think that usury is a positive defense to be established by proof. It is enough that this note, if genuine, would not necessarily be void.

The next point relied upon by the defendant is that the name of Chester A. Miller, alleged to be forged, is not that of the payee, and that the bill is not alleged to have been endorsed by. the payee. The allegation of the indictment is that the defendant forged the whole instrument with the indorsement by which a pecuniary demand purported to have been affected against Chester A. Miller.

The instrument was in form a bill of exchange drawn by Coons on the bank to the order of Wheeler and indorsed by Miller. If genuine then on non-payment thereof and notice, Coons would be liable like the indorser of a note. Miller, too, would be liable, as an endorser, after Coons, and would be so liable to Wheeler.

Wheeler then might, by transfer of this bill, had it been genuine, have made Miller liable to the transferee of Wheeler.

Judgment reversed and cause remitted to sessions with leave to withdraw demurrer, and plead.

Landon, P. J., and Ingalls, J., concur.  