
    C. Olivia Sabine, Appellant, v. Maggie S. Paine, Respondent, Impleaded with Eugene F. Vacheron, Defendant.
    Second Department,
    January 12, 1912.
    Bills and notes — action by indorseé against maker — defense of usury — presumption. of consideration — when court may take case from jury.
    In an action by the indorsee of a note against the maker, it appeared that the defendant, desiring to borrow $1,600, was advised by her attorney that the plaintiff would loan the money, but would require a bonus of $500. The note was made to include the bonus and payable to the defendant’s attorney, who indorsed and transferred the same before maturity to plaintiff. Held, that if there was a valid consideration between the maker and payee, it is of no consequence what the plaintiff paid for it; but if its inception was tainted by usury, the subsequent transfer before maturity did not validate it;
    That the evidence of the maker as to whether there was a valid consideration for the note not being entirely clear, and there being a presumption that it was for a good consideration and the note also containing the admission that it was given for value received, it ought to have been left to the jury to determine whether the presumption had been overcome, and it was error to dismiss the complaint.
    It is only when but one inference can be drawn from the evidence that the court is justified in taking the case from the jury.
    Appeal by the plaintiff, C. Olivia Sabine, from a judgment of the Supreme Court in favor of the defendant Maggie S. Paine, entered in the office of the clerk of the county of Suffolk on the 18th day of April, 1911, upon the verdict of a juiy rendered by direction of the court, and also from an order entered in said clerk’s office on the 1st day of May, 1911, denying the plaintiff’s motion for a new trial.
    
      John B. Sabine and Edward Calm, for the appellant.
    
      George W. Glaze, for the respondent.
   Rich, J.:

This appeal is from a judgment dismissing plaintiff’s complaint on the merits upon direction of a verdict in an action upon a promissory note for $2,100 which was transferred to the plaintiff by the payee named therein for $1,850.

It appears that the respondent, the maker of the note, desiring to borrow $1,600, was advised by her attorney that the plaintiff would loan the money, but would require a bonus of $500. Accordingly, the note in suit was made to include the bonus, and payable to the order of Vacheron, her attorney, who indorsed and transferred the same before maturity to plaintiff. The respondent testified that she never received any part of the proceeds of the note, and the learned trial justice before whom the action was tried held as matter of law that the note was void at its inception. _

If there, was a valid consideration between the maker and payee, it is of no consequence what the plaintiff paid for it (Eastman v. Shaw, 65 N. Y. 522, 526), but if its inception was tainted "by usury, the subsequent transfer before maturity did not validate it.

The respondent testified that she informed Vacheron, her attorney, that' she wanted the money to pay debts amounting to about the sum of $1,400; that he at one time-had moneys belonging to her in his individual account, and that “he sometimes paid what was due from me to others by check. * * * Mr. Vacheron did not hand' over to me that $1,850 or put it into my hands. I wouldn’t swear and I don’t know whether he applied it in payment and satisfaction of my obligations.”

The evidence of the respondent as to whether there was a valid consideration for this note is not entirely clear. The presumption is that it was for a good consideration, and it ought to have been left to the jury to determine'whether the presumption has been overcome. It is only when but one inference can be drawn from the evidence that the court is justified in taking the case from the jury.- Besides this, the note contains the admission that it was given for value received. In Strickland v. Henry (175 N. Y. 372), speaking of such an admission, Chief Judge Parker said: “How, while it was open to defendant to contradict that statement and to show that as a matter of fact it was without consideration, the note in the possession of plaintiff raised the presumption that it was given for a good consideration, and passed to plaintiff in" due course of business. The defendant’s evidence tended to overthrow this presumption. Whether it was true was — in view of the legal presumption.raised by plaintiff’s possession of the note indorsed by the payee, and the recital therein that defendant had received value for it — a question of fact to be determined by the jury.”

It follows that the action of the trial court in taking the case from the consideration of the jury was mistaken, and that the judgment and order must be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.

judgment and order reversed and new trial granted, costs to abide the event.  