
    Marietta Ludington, Respondent, v. Harford B. Kirk et al., Appellants.
    (Supreme Court, Appellate Term,
    May, 1896.)
    1. Usury — Gratuity to agent.
    ■ The mere payment to the agent of the lender of a gratuity or commission for procuring forbearance on a note which is renewed, does not render the renewal note usurious.
    2. Same — Indorser of corporate note cannot plead.
    Neither the corporation maker nor its indorsers can plead usury as a defense to the note.
    3. Partnership — Representations of member of.
    A representation made by one member of a firm, in ■ negotiating a note, that it is business paper, which is acted upon in good faith, is , binding upon the firm, and estops the members thereof from claiming the contrary.
    Ludington y. Kirk, 16 Mise. Rep. 301, affirmed.
    Appeal from affirmance by General Term of the City Court of Hew York of a judgment rendered by direction of the court at Trial Term in favor of the plaintiff.
    Action upon promissory note.
    Lyman W. Reddington, for respondent.
    George Putnam Smith, for appellants.
   Bischoff, J.

This action is brought against the defendants, members of a copartnership, as indorsers of a promissory note made by a certain corporation and transferred before maturity, and for value, to the plaintiff, the defendants’ firm being the payee of the note.

The instrument in suit was received by the plaintiff in renewal of a nóte also made by this corporation and the defense- was usury, based upon the fact that the plaintiff’s agent personally received a payment over and above the amount of interest, or rate of discount, due upon the renewal. -

That this transaction did not amount to an agreement for the receipt of usury cannot well be in doubt, in view of the fact that the evidence is entirely in favor of this payment having been made in the nature of a gratuity to the agent or a commission for procuring forbearance upon the note renewed. Condit v. Baldwin, 21 N. Y. 219; Estevez v. Purdy, 66 id. 446; Van Wyck v. Watters, 81 id. 352. Furthermore, since the note was that of a'corporation, usury was not a defense open to it or to the indorsers. Stewart v. Bramhall, 74 N. Y. 85.

The distinction sought to be made by the appellants that the corporation was an áccommodation maker, and that the note practically took inception from the indorsement, cannot be adopted. Whatever the value of this proposition might be in general, we cannot say from the evidence in this case that the corporation was an accommodation maker, a remarkable position in any event for a corporation to assume,- and the presumption is that the note was given for value. -

Moreover, the evidence is that Breck, the partner negotiating the instrument, informed the plaintiff’s agent that -it was business paper, and the trial justice was authorized in finding that this representation controlled the transaction. The representation, acted upon in good faith, estopped the indorsers from claiming the contrary. Mason v. Anthony, 3 Keyes, 609.

The record contains sufficient evidence to charge the defendants with liability upon the indorsement made by their partner, Breck, irrespective of the secret limitations upon his powers, and we fail to see how the justice could have escaped determining the cause submitted to him in favor of the plaintiff.

The contention that the recovery should have been only in the actual amount paid for the original note, $930.78, with interest, instead of $1,000, the face of the note in suit, is not well founded.

True, this .action is between the purchaser of the note and-her indorser, the vendor, and thus should not result in a recovery o-f a sum greater than was paid as consideration for the sale with interest (Ingalls v. Lee, 9 Barb. 647; Phillips v. Mackellar, 92 N. Y. 34), but the consideration for the note in suit was the cancellation ■ of a note, of equal value, enforceable on its face against the maker, at least, for that amount, and it is not for this court, nor was it for the court below, to speculate as to the probability of its payment at, or enforcement after, maturity, if it had not been canceled.

-3STo reduction, moreover, should be made on account of the payment of $65 made by-Breck upon delivery of the note in suit and the cancellation of the original note. Of this sum $20. was paid by check made to the plaintiff’s order and intended to meet the legal rate of discount, and the remainder was knowingly paid as a gratuity or commission to another individual, personally, and was not in the least a part of the transaction with the plaintiff.

The judgment should be affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  