
    Charles H. Whedon, Appellant, v. James Hogan, Impleaded, Respondent.
    (New York Common Pleas—Additional General Term,
    May, 1894.)
    A purchase oí accommodation paper at an usurious rate renders it void as to the maker, even though the purchaser took it upon a representation oí the payee that it was business paper.
    The maker of a note is not estopped from setting up usury by a statement made by him in writing prior to the transfer that the signature to the note was all right.
    Appeal by the plaintiff from a judgment of the District Court in the city of New York for the ninth judicial district, rendered by the justice of the eleventh judicial district acting in the absence of the justice of the first-mentioned District Court, without a jury, in favor of the defendant, James Hogan.
    The opinion states the nature of the action and the material facts.
    
      Frank Moss, for appellant.
    
      Percy L. Flock, for respondent.
   Giegerich, J.

This action was brought upon the following promissory note:

“ §100.
New York, Jan. 24, 1893.
Three months after date I promise to pay to the order of W. H. Ruffhead, One hundred dollars at No. 36 Beekman St., New York city. Value received.
James Hogan.”

which Ruffhead transferred to the plaintiff for eighty dollars.

Judgment by default was rendered against Ruffhead, but Hogan set up the defense of usury, and judgment was rendered in his favor against the plaintiff. The evidence was conflicting as to whether this was an accommodation or a business note, but the trial justice evidently found upon this issue for the defendant, and there is no sufficient ground for disturbing his decision. Kelly v. Walton, 6 Misc. Rep. 152; Lynes v. Hickey, 4 id. 522; 24 N. Y. Supp. 731; Weiss v. Strauss, 39 N. Y. St. Repr. 78; 14 N. Y. Supp. 776; Dempsey v. Paige, 4 E. D. Smith, 219.

The rule is firmly established that the purchaser of accommodation paper at an usurious rate is not excused by reason of his lack of. knowledge of its character (Clark v. Sisson, 22 N. Y. 312; Eastman v. Shaw, 65 id. 522, 530; see, also, Claflin v. Boorum, 122 id. 385 and cases cited), and even though the payee represents that it is business paper it is usurious and void as to the maker. Dowe v. Schutt, 2 Den. 621, 624; Holmes v. Williams, 10 Paige, 326, and cases cited.

This makes the question of Ruffhead’s alleged representations at the time of the sale, that the note was for commissions, immaterial as between the plaintiff and Hogan.

Estoppel is claimed, based upon the following letter :

“New York, Jan. 26, 1893.
“ Mr. Whedon :
“Dear Sir.— The signature is all right on the note for $100.
W. H. Ruffhead,
“ James Hogan.”

which was sent in reply to a note of inquiry from the plaintiff before he consented to deal with Ruffhead, with whom all his interviews were had. We can see in this no more than what upon its face it purports to be, a certificate to the genuineness of the signatures. Another letter and a conversation between plaintiff and Hogan are also relied upon, but both were subsequent to the discounting of the note and do not appear to have influenced the plaintiff to his detriment.

The judgment should be affirmed, with costs.

Bischoff, J., concurs.

Judgment affirmed, with costs.  