
    Felix Hessberg, Respondent, v. Tefwick M. Matter, Appellant.
    (Supreme Court, Appellate Term,
    June, 1909.)
    Banking — Loans and discounts — Usury.
    Set-off and counterclaim — Claims which may be allowed as counterclaim or set-off in general — Statutory penalties.
    A person engaged in business as a private banker is within the privileges and immunities from the consequences of a violation of the laws against usury conferred upon incorporated banks by section 55 of the Banking Law.
    The penalties for taking usury imposed upon banks by the Banking Law are recoverable only in an action brought for the purpose and cannot be set up as a counterclaim in an action by the bank to recover the usurious indebtedness.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, ninth district, borough of Manhattan.
    Louis H. Moos, for appellant.
    Cohen, Creevey & Richter, for respondent.
   MacLean, J.

The complaint alleges that the plaintiff was, and still is, engaged in the business of banking in the city of Flew York; that pn two separate occasions he loaned certain sums of money to the defendant who, as security therefor, by writing assigned to the plaintiff certain outstanding accounts in favor of the former against third persons, and that thereafter the defendant in violation of the plaintiff’s rights collected two of said accounts, less discount, and converted same to Ms own use, refusing to pay same to the plaintiff upon demand. The answer, among other things, alleges that the plaintiff was to receive upon the loans interest at twenty per cénit., and that, therefore, they were void.

Asked his business, the plaintiff on the trial answered: “ Banking, private banker.” By this he declared himself a person “who,” as pronounced by the court (Folger, J., in People v. Doty, 80 N. Y. 225, 233), “ exercises in his business no more than the rights and privileges common to all men, as distinguished from a bank or association or person who has taken advantage of the provisions of statutes, and by a compliance with the conditions of them has privileges not natural and common.” That ruling notwithstanding, the plaintiff by his declaration, not contradicted -or impeached, elected himself member of a class of privileged persons to whom immunities formerly conferred only upon incorporated banks have been extended by section 55 of the Banking Law, as interpreted with strait literalness by the court (Follett, J., in Perkins v. Smith, 116 N. Y. 441, 447, 449), whereby the public ban, “Flo person or corporation shall directly or indirectly take or receive * * * any greater sum * * * for the loan or forbearance of any money” than the prescribed interest (1 R. S. 772, § 2), has been debilitated to a matter of nomenclature and the genus bugaboo for a man calling himself a private banker and making a business of getting extortionate interest, while it remains a real law against the man, be he citizen or sojourner, assuming no pseudonym or calling, who takes above the legal interest but once and, therefore, must lose his loan.

It is a fact that interpretation has not wholly abolished the statutory forfeiture of the entire interest the note or other evidence of a usurious debt carries with it, or the twofold reimbursement of usurious interest actually paid. It has been ruled,- however, that such forfeiture may not be set up as a counterclaim in an action upon the loan, but is recoverable only in a separate aiction, inasmuch as the loaner has a right to insist that the prosecution shall be by suit brought specially and exclusively for that purpose, without the presence of any extraneous facts which might confuse the case and mislead the jury to his prejudice. Caponigri v. Altieri, 165 N. Y. 255, 262; Barnett v. Muncie Nat. Bank of Indiana, 98 U. S. 555, 559.

The rulings of the learned trial justice sustaining objections to evidence of usurious taints in the transactions were, therefore, legally correct.

Gildicbsleeve and Seabtjby, JJ., concur in result.

Judgment affirmed, with costs.  