
    MARGARET MOORE, et al., as Ex’rs, &c., Respondents, v. WILLIAM LEONARD and ROSE LEONARD, Impleaded, et al., Appellants.
    
      Usury—finding against not disturbed.—Notice to produce—what compliance with.
    
    In an action to foreclose two mortgages, the defense was usury. Plaintiffs relied on two certificates as to the validity of the mortgage, and as to there being no defense to them. Defendants called a witness who testified to hearing a conversation between one of defendants and the plaintiffs’ testator (the mortgagee), tending to establish the usury-relied on, and also - called two others who testified to admissions by the mortgagee tending in the same direction. The court below found in favor of plaintiff. Held, that the finding should not be disturbed.
    A notice to produce a certain account-book containing entries of money paid by M. to L. and by L. to M., was given. A book was produced which complied with the notice. Meld, a compliance with the notice, although a witness who testified to having seen this book at a certain interview also testified, that at the same interview he had seen another book.
    Before Sedgwick, Oh. J., O’G-orman and Ingraham, JJ.
    
      Decided March 30, 1885.
    Appeal from a judgment entered upon the findings of a judge on a trial at special term, without a jury.
    The action was to foreclose two mortgages, and the defense was usury. The facts appear in the opinion.
    
      E. Seymour, attorney, and of counsel for appellants, argued among other things
    I. The court erred in ques tioning Moore’s identity, not in issue, and had no right, contra unimpeached and uncontradicted testimony, to presume the man wasn’t Moore, or disbelieve witnesses who had no interest whatever in the result of this suit, or inducements to commit perjury (25 N. Y. 361; 1 Cow. 109).
    II. Neither of the certificates can be considered, under the surroundings of this case, an estoppel. Both parties knew of the usury, and any statement to the contrary was a falsehood, a device to cover usury; but there is no evidence that Leonard knew their nature or contents. The only question of fact before- the court, was whether each mortgage was void for usury (2 R. S. ch. 4, tit. 3 ; 1 ed. p. 772, § 5 ; 1 Cow. Trea. 3 ed. 284, 286). It is insisted, no estoppel can be set up between immediate parties to avoid the force of the statute against usury, and no so-called equitable estoppel exists in this case (4 Barb. 501; 22 Hun, 264 ; 1 Smith Ldg. Cas. 1847, 511; 62 N. Y. 96 ; 69 Ib. 113; 73 Ib. 597 ; 82 Ib. 129).
    
      Kelly & Macrae, attorneys, and Wm. F. Macrae, of counsel for respondents, argued:
    Usury is a defense which must, not only be strictly proven, but must be affirmatively and positively established (Tyler Usury, 468). It is not enough that the relation of the witnesses to each other, and the circumstances sworn to by them, render it highly probable that the transaction was usurious; the usury must be- proved, and not left to conjecture. Nor will it avail the defendant that the case makes out usury, if is is not the case made by the answer. The corrupt agreement must be distinctly set up and proved as alleg'ed (New Jersey Co. v. Turner, 1 McCarter, 326 ; Western T. & Coal Co. v. Kilderhouse, 87 N. Y. 434 ; Dagal v. Simmons, 23 Ib. 491).
    II. The testimony of defendants in the case at bar, makes no pretense whatsoever, of proving any actual agreement between the parties. Admissions of a party are to be taken with great and extreme caution. The admissions here are uncertain, indefinite and wholly unreliable, and prove nothing (Booth v. Swezey, 8 N. Y. 276).
    III. It is contended that the court below erred in excluding the contents of a book. There was so much doubt about the identity or existence of the book, or what its contents were, that the court below was justified in using his discretion to exclude the supposed contents. It would be giving great license to a witness to permit him to testify to the contents of a book merely “ glanced at,” when he is confessedly unable to state with any precision or accurracy what the book, if it ever existed, was, or what it contained, or whether it had any reference to the mortgages in suit. The question as to the sufficiency of proof of loss, so as to admit parol evidence of the contents, is entirely in the discretion of the trial court. The case must be quite without proof to authorize an appellate court to find error (Graham v. Chrystal, 1 Abb. N. S. 121; McCullogh v. Hoffman, 73 N. Y. 615 ; Latourette v. Clark, 51 Ib. 641; Bridges v. Hyatt, 2 Abb. 449).
    IV. Parol evidence,» to establish the contents of a writing, must be clear, certain and positive, “such as leaves no reasonable doubt ” (Nickols v. Kingdom Ore Co., 56 N. Y. 618 ; Edwards v. Noyes, 65 Ib. 125 ; Lozer v. Burt, 4 Den. 426 ; Graham v. Chrystal, 2 Keyes, 21 ; Taylor v. Riggs, 1 Peters, 591). The notice to produce served in this action “requires plaintiffs to produce a certain account-book containing entries of moneys paid by William Moore, deceased, to William Leonard, and by William Leonard to William Moore,” and such a book was produced and put in evidence. Whether then, Abbott had ever seen another book, or knew enough about its contents to speak with any accuracy, was very questionable, and the court was quite right in excluding the witness’ confessedly uncertain recollection of its supposed contents.
   By the Court.—Ingraham, J.

The court below found that the bonds and mortgages described in the complaint were given for a valuable consideration received by the defendant, William Leonard, on or before the execution thereof ; that there was no usury upon or for the making of such bonds and mortgages, or either of them.

After a careful examination of the evidence given on the trial, we think there was sufficient to sustain that finding. The plaintiffs proved the bonds and mortgages, and also an instrument in writing dated February 16, 1815, signed by the defendant William Leonard, and duly acknowledged before a notary public. That instrument certified that there was justly due and unpaid on said respective mortgages, viz.: one dated August 11, 1813, and the other dated September 19, 1813 (as described in the complaint), the full amount of the principal secured thereby, together -with interest from the respective dates of said mortgages, and that he (Leonard) had no offsets or legal or equitable defense against the same. Plaintiffs also proved an agreement dated October 30, 1816, signed, executed and acknowledged by William Leonard and Eose Leonard, his wife, and which recites that the said mortgages, being the same mortgages described in the foregoing certificate or instrument, are, and each of them is a good and valid hen for the amounts respectively upon the said premises, and there were no claims or offsets of any nature or kind whatsoever against the respective amounts secured thereby, or any part thereof or the interest due, or to grow due thereon.

It will be noticed that both of these instruments are executed long after the execution of the mortgages in question, and not as part of any alleged usurious transaction. They were both formally executed and acknowledged, and while they did not estop the defendant from' denying the truth of the facts stated in them, they are strong evidence as against him.

The defendant to overcome this proof called a witness, who testified that some time in the second week of July, 1873, he was present at a conversation between the plaintiff’s testator and the defendant Leonard; that Leonard asked Moore to loan him $6,000- to finish the building on the mortgaged premises ; that Moore in reply said, “You know the mortgage of $7,000 is on the property already ; I will cancel that $7,000 mortgage, and I ■will give you $5,000 cash if you will give me a mortgage for $13,000.” Leonard said, “I will agree.” That is all the witness • knew of that transaction; was not present when the mortgage was given ; did not know, and it does not appear, that this agreement was carried out, or that the mortgages in suit were given in pursuance of that agreement.

There was a mortgage for $7,000, which was dated August 8, 1867, and that mortgage, being part of the consideration for the $13,000 mortgage described in the complaint, was owned by Mr. Moore at the time, and was satisfied and discharged by him on August 12, 1873. It might well be that the interest due on that $7,000 mortgage at the time of the execution of the $13,000 mortgage was more than sufficient to make up the difference between the amount of the $13,000 and the amount of the additional $5,000 that the witness McDermott said Moore was, by the agreement he heard, to pay to Leonard, if that agreement was afterward carried out.

The same witness again testifies that he heard another conversation about two months later, and this time substantially the same thing is said about another mortgage, Leonard wishing more money to finish the building. Moore this time says, “You give me a mortgage for $4,000, and I will give you $3,000 cash.” Leonard says, “ That is too heavy,” but finally agrees.

The interview happened eleven years before the trial, and was heard by the witness who had no interest in the property or in the parties, and who appears to have no business in the place except to listen to the conversation between Leonard and Moore.

The trial court, having the witness before it, and having heard his evidence, refused to believe his testimony.

The defendant also called two witnesses to ■ swear to admissions made by Moore to Leonard, in which Moore is made to admit that Leonard gave him a mortgage for $13,000, and received only $12,000, and another mortgage for $4,000 and received only $3,000.

In order to sustain his defense, the defendant was bound to set up in the answer the usurious contract, specifying its terms and the particular facts relied upon to bring it within the prohibition of the statute, and to prove them substantially as alleged (Western Transportation Coal Co. v. Kilderhouse, 87 N. Y. 430).

The trial judge has found that the defendant has failed to prove the usurious agreement alleged in his answer, and we think that finding is supported by the evidence, and should not be disturbed.

No error was committed in excluding the contents of the book that Mr. Abbott says he saw on his visit to Moore. No notice to produce that particular book was given to plaintiffs3 attorney. A notice was served on plaintiffs’ attorney to produce a certain account-book containing entries of money paid by Moore to Leonard, and by Leonard to Moore, and a book was produced on the trial which complied with this notice.

It appears that at the same interview, Mr. Abbott had seen another book, but the notice to produce related to but one book, and the production of the book containing the accounts between the parties, complied with the provisions of the notice. It did not appear that the other book seen by Mr. Abbott contained accounts between Leonard and Moore, or related in any way to the transaction in question, and it further appeared that the witness was allowed, on cross-examination, to testify substantially to the contents of the book.

The other exceptions to the evidence have been examined, but none of them require specific notice. We think none of them well taken.

We think that the judgment appealed from should be affirmed, with costs.

Sedgwick, Oh. J., and O’Gorman, J., concurred.  