
    SUPREME COURT—APP. DIV.—FOURTH DEPT.,
    November 13, 1912.
    THE PEOPLE v. GUS A. YOUNG and HARRY MEALY.
    (153 App. Div. 567.)
    (1.) Usury—Banking law, section 314—Indictment.
    An indictment which, in the first count, charges a violation of section 314 of the Banking Law by asking interest greater than the legal rate for the loan of less than $200, and in the second count charges a violation of said section by receiving such excessive interest, does not charge more than one crime within the meaning of sections 278 and 279 of the Code of Criminal Procedure, as both counts refer to the same transaction.
    (2.) Same—Defense—Return of excessive interest.
    The fact that the defendants, who were the manager and an employee of a loan association, subsequent to the indictment and prior to the trial, returned to the complainant all the excess interest charged above the legal rate, does not constitute a defense, under section 376 of the General Business Law, as said section is not applicable.
    (3.) Same—Proof.
    Proof held sufficient to sustain the crime charged against both defendants.
    Sections 74 and 314 of the Banking Law are to be construed as superseding, within their limits, the more general provisions of the General Business Law. ■
    (4.) Same—Banking Law—Sections 74 and 314 construed.
    The provisions of section 74 of the Banking Law as to the taking of excessive interest relate solely to the enforcement of civil rights and remedies.
    Appeal by the defendants, Gus A. Young and another, from a judgment of the Supreme Court, rendered against them on the 24th day of June, 912, after a trial at the Erie Trial Term, convicting them of a violation of section 314 of the Banking Law, and also from two orders made herein on the 24th day of June, 912, overruling the defendants’ demurrer to the indictment and denying their motion in arrest of judgment.
    
      
      Charles A. Colson, for the appellants.
    
      Bart 7. Shanahan and Wesley C. Dudley, for the respondent.
   Lambert, J*.:

The indictment herein is in two counts; the first charges a violation of section 314 of the Banking Law by the charging of interest and discount greater than the legal rate of interest upon the loan, use and forbearance of money less than $200 in amount and value. The second count charges a violation of the same section of the statute by receiving such excessive interest and discount upon such loan.

To this indictment the appellants have demurred upon the ground, among others, that it charges more than one crime within the meaning of sections 278 and 279 of the Code of Criminal Procedure.

From the facts pleaded, under the separate counts of the indictment, it appears satisfactorily that thé charging of the excessive interest and the receiving of the same are both charged with reference to a single transaction. Under such circumstances, the indictment does not offend the statutory provisions. (People v. Gibson, 191 N. Y. 227, 22 N. Y. Crim. 188; People v. Wilson, 151 id. 403, 12 N. Y. Crim. 116.)

Appellants are employees of what is known as the State Loan and Fealty Association. At least, their operations seem to have been conducted under that name. In December, 1910, Feed, the complainant, visited the office conducted under that name and there procured a loan of twenty-four dollars and fifty cents. As security for its repayment he was asked to and did execute an assignment of his wages in the amount of thirty-seven dollars and ten cents, together with a power of attorney for the collection of the same. The difference was charged him for the loan. Tu March. 1911, this assignment was presented to Reed’s employer, and the full amount was collected by and paid to the defendant Mealy. The defendant Young was the manager of the office so conducted, and the defendant Mealy was an employee.

It is urged in behalf of the defendant Mealy that the proof did not show his knowledge that the original loan involved an agreement to take usury, and that, in the absence of proof of such knowledge upon his part at the time he collected or received from Reed’s employer the original loan and the excessive interest, as to him there was a failure of proof requiring a reversal. If the facts adduced upon the trial supported this contention, very likely that result would folow. The evidence of Reed is to the contrary. He testified positively that Mealy was present in the office of the realty association at the time of the negotiations for the loan the subject of the usurious charge. While he was contradicted by Mealy and the officers of the association it thereby became a question of fact for the jury, and their determination should not be disturbed.

The proof fairly sustains the elemental facts charged, and it only remains to determine whether those facts fall within the prohibition of the above section of the Banking Law.

Section 314 of the Banking Law (Consol. Laws, chap. 2; Laws of 1909, chap. 10), provides as follows. “In any such county no person or corporation, other than corporations organized pursuant to .this article, shall, directly or indirectly, charge or receive any interest, discount or consideration greater than the legal rate of interest upon the loán, use or forbearance of money, goods or things in action less than two hundred dollars in amount or value. * * * Any person, and the several officers of any corporation, who shall violate the foregoing prohibition, shall be guilty of a misdemeanor.”

Article 10 of the Banking Law (as amd. by Laws of 1910, chap. 127), within which is found the foregoing section, provides for the formation of quasi-charitable corporations, under certain restrictions and regulations, and permits the charging by any such corporation of a greater rate of interest than six per centum, restricting, however, the profits of any such corporation. (People v. Schultz, 149 App. Div. 844, 27 N. Y. Crim. 233.)

There is no claim made that the defendants are within the exceptions of section 314.

It is contended, however, that the appellants are shown to be private bankers and, hence, that they are within the pro-' visions of section 74 of the Banking Law; that the provisions of such section are exclusive and define fully all the penalties attaching to usury when committed by a private banker.

Section 74 of the Banking Law by its terms only purports to grant the same privileges to the banking institutions of the State, including private bankers, as are granted by the Pederá! Statutes to national banks. This equality of privilege is expressly limited by the section itself to those particulars in the section referred to. An examination of the section discloses that those particulars therein specified relate solely to the enforcement of civil rights and remedies, and that neither expressly nor impliedly do they relate to criminal redress or purport to be exclusive.

In this view of the matter it is of no consequence whether appellants are private bankers or not. In this connection it is to be observed that all the cases to which we are referred and which we are able to find relate to the enforcement of civil rights and not to "criminal actions.

In this position we find support in the case of People v. Schultz (supra). "While the opinion in that case does not disclose whether this precise question was urged, the facts show it to have been involved. The defendant Schultz was engaged in the same business .as these appellants and under the same business name. The conviction in that case was recently affirmed by the Court of Appeal without opinion. (206 N. Y. 627.)

Subsequent to the indictment, and prior to.the trial, the appellants paid back to the complainant all the excess charged above the legal rate of interest. Such repayment is now urged, as it was upon the trial, as a complete defense in this action. This contention is, based upon section 376 of the General Business Law (Consol. Laws, chap. 20; Laws of 1909, chap. 25), which is as follows: “ Every person who shall repay or return the money, goods or other thing so taken, accepted or received,, or the value thereof, shall be acquitted and discharged from any other or further forfeiture, penalty or punishment which he may have incurred by taking or receiving the money, goods or other thing so repaid or returned as aforesaid.”

If this section, in its reference to any other or further forfeiture, penalty or punishment,” was intended to refer to and embrace the penal provisions of section 314' of the Banking Law, then the contention would be sound, and a reversal would be required. The determination of this question involves the examination of the general plan and scope of our entire usury , legislation.

Section 376 of the General Business Law, above quoted, is found in article 25 of that statute. That article is devoted to and treats generally of interest and usury, without making any distinction with reference to bankers or persons engaged in that business.

Sections 74 and 314 of the Banking Law, being legislation applying specifically to the same subject, but dealing with it only with reference to persons or institutions engaged in a particular business, are to be construed as superseding, within their limits, the more general provisions of the General Business Law. And if, as they now assert, the appellants are private bankers, then they are within the provisions of. the Banking Law and can gain no benefit from section 376 of the General Business Law.

There is another view which seems conclusive. Sections 372 and 373 of the General Business Law are devoted to specifying consequences which shall follow the taking of usury. Those consequences may well be termed “ forfeitures, penalties and punishments.” Then follow the exempting provisions of section 376, above quoted. Still later, in the article, by section 381. This would seem to indicate a legislative intention to there is provided a right of action arising under the contingencies therein specified; and, by the next section, there is tingencies therein specified; and, by the next section, therein enacted the same provisions found in section 376, with the additional condition that the repayment shall likewise include the costs of the action.

■Although not expressly so limited, it is apparent that section 382 is limited in its application to the provisions of section 381. This would seem to indicate a legislative intention to limit the application of sections 376 and 382, not only to those forfeitures, penalties and punishments specified in that statute, but to such of those only as precede such sections respectively.

The aboVe views lead to the affirmance of the judgment and order appealed from.

All concurred.

Interlocutory judgment, final judgment of conviction and order denying motion for arrest of judgment affirmed.  