
    The People v. John K. Hubbard.
    (Superior Court of Buffalo
    Criminal Term,
    November, 1894.)
    An indictment which simply charges the exaction and reception of interest, discount or consideration for the loan or forbearance of money at a greater rate than allowed by statute is insufficient; to constitute a good plea of taking usury, the indictment must charge the usurious agreement and specify its terms and the particular facts relied upon to bring • it within the statute.
    Demurrer to an indictment.
    ' Hcmiél I. Kenefiok, Hist/riet Attorney, for People.
    ' Marey dé Glose, for defendant.
   Hatch, J.

The charging clause in the indictment alleges that defendant, at a time and of a person specified, wrongfully and unlawfully did exact, take and receive * * * $3.50 in money, as interest, discount and consideration upon the loan and forbearance * * * of $33.00 in money for the period.of one month,” being a greater sum for the use of the money than the statute allowed.

The ground of demurrer, among others, is that the facts alleged do not constitute a crime. I think the indictment is defective in this regard. The section of the Code (Penal Code, § 378) does not attempt to define what acts constitute usury; it simply provides that a person taking usury shall be guilty of a misdemeanor. The language is, in all essential parts, the same as the prohibitive clause of the Revised Statutes respecting rates of interest. 4 R. S. (8th ed.) 2512, § 2.

In order, therefore, to constitute a good plea of taking usury under this section, the allegations of the indictment must charge the usurious agreement, specifying its terms, and the particular facts relied upon to bring it within the prohibitive clause of the section. Manning v. Tyler, 21 N. Y. 567 ; West. T. & Coal Co. of Mich. v. Kilderhouse, 87 id. 435.

The receiving or exacting a greater rate of interest than is authorized by statute máy or may not constitute usury, dependent upon the circumstances, for, in order to constitute usury, it must appear that the exaction and reception of the additional interest was in pursuance of a mutual agreement between the parties. Morton v. Thurber, 85 N. Y. 550 ; People v. Wheeler, 47 Hun, 484. And this agreement must be alleged and proved. People v. Albow, 140 N. Y. 134.

The demurrer to the indictment is, therefore, allowed, and the case is directed to be resubmitted to another grand jury.  