
    The Long Island Bank, Resp't, v. George A. Boynton, Appl't.
    
      (Court of Appeals,
    
    
      Filed April 19, 1887.)
    
    Pleading—Variance—Bills and notes—Usury.
    In an action on a promissory note, defendant set up in his answer that it had an usurious inception, but on the trial offered to prove a conti act totally different from that stated in the answer. But to show that plaintiff was not surprised he offered in evidence papers on which he had unsuccessfully moved for leave to serve a new answer conforming to the proof now offered. Held, that the usurious contract must be proved as laid, and that it was not error to hold that an admission that it has not been and could not be so proved has no tendency to defeat a cause of action which came to the plaintiff for full value, and without notice of any defect.
    The complaint in this action was upon a promissory note made by defendant to his own order, and indorsed by him. One Tuttle was joined as defendant, but did not answer. Boynton, by his answer, denied any knowledge of the Tuttle indorsement, alleging that he had made and delivered the note to one Alonzo Follett, and agreed that Follett should reserve eight per cent interest and a commission of a quarter of one per cent, and that the note was usurious and void, and that all the title plaintiffs had was acquired from Follett. On the trial plaintiffs introduced the note, proved the indorsement of Tuttle and the amount of interest due, and rested.
    Defendant, on his own behalf, testified as to the agreement and swore that the note in question was the same mentioned in exhibit No. 6, which exhibit was offered in evidence and admitted. According to this, Follett, in July, 1882, rendered an account to defendant, showing the receipt of notes amounting to $129,000, less six per cent discount and one quarter of one per cent commission. The other side of the statement set forth notes maturing April 27, $4,523.67; April 29, $47,000; June 9, $30,000; July 13, $45,000, and interest due July 18, $924.24, thus leaving a balance due Follett of $863.07. Defendant also offered in evidence the notes referred to on the credit side of the statement, and a further account showing the payment of the balance due Follett as above, and five other statements of account from Follett, for the purpose of showing that all the notes returned by Follett, for which he received the notes for $129,000, were on eight per cent discount and one quarter of one per cent commission. He also offered to prove that plaintiffs were not surprised as he had made a motion to amend his answer so as to contain a full account of his dealings with Follett, all of which the court excluded and directed a verdict for plaintiff, and judgment was entered against Boynton alone.
    
      Darlington, for def’t and app’lt; Van Orden, for resp’t.
   Danforth, J.

The action was by the plaintiff as indorsee for value, against Boynton as maker and first indorser of a promissory note payable to his own order, and one Tuttle as second indorser. The complaint alleged the indorsement and delivery of the note by Boynton to Tuttle, and its indorsement and delivery by Tuttle to the plaintiff. The defendant, Boynton, by his answer, put in issue these facts. The burden of proving them was of course on the plaintiff; and the trial court did not err in refusing to give the defendant the affirmative. He, also, set up that the note in suit had its inception in a corrupt and usurious contract with one F. for a loan of money for which F. was to receive eight per cent per annum, besides a commission of one-fourth per cent on the face of the note. The evidence gave no color for the defendant’s contention on this point, and the proof offered by him was of a contract totally different from that stated in the answer. Such was even the defendant’s position on the trial; but, to show that the plaintiff was not surprised at the variance, he offered in evidence papers on which he had on some former occasion unsuccessfully moved at special term for leave to serve a new answer, conforming to the proof now offered, but in no respect like the present pleading. The usurious contract must be proved as laid, and it was not error to hold that an admission that it has not been and could not be so proved has no tendency to defeat a cause of action which came to the plaintiff for full value, and without notice of any defect.

The appellant cites Tyng v. Commercial Warehouse Co. (58 N. Y., 308), as against the ruling of the trial court; but in that case no question was made upon the trial as to the sufficiency of the pleadings, or the relevancy of the proofs, and it was held that it was within neither the authority nor the duty of an appellate court to deprive the successful party of his recovery on the grounds of incompleteness or imperfection of his pleadings. In the case before us, not only was the objection taken on the trial, but the trial judge, to overcome it, was required to disregard the decision of the special and general terms, and grant indireetly a favor which those courts had upon formal application denied. The statute against usury is, like other statutes, to be obeyed; but whoever desires its aid through the interference of a court must make out his title to relief by allegations as well as proof. This the defendant failed to do.

The judgment should be affirmed.

All concur.  