
    James W. Dunlap, Respondent, v. Charles P. Toy, Impleaded, Appellant. James W. Dunlap, Respondent, v. John P. Downey, Impleaded, Appellant.
    (Supreme Court, Appellate Term,
    March, 1897.)
    Usury — Scheme to' avoid the statute.
    Defendants, being desirous of procuring a loan of money, applied to plaintiffs brother, who had advertised to lend on ■ assignments of wages, and. he agreed to loan each of them $25 on an assignment of $36 of wages. They thereupon signed assignments of such amounts to the plain-ti££ and also agreements to pay $11 to his brother,- who sent them to plaintiff with a note stating that they had “ executed the necessary instruments.” 'Plaintiff gave them checks for the full amount of the loans which he cashed after indorsement, and the defendants then . returned to his brother and' paid the ipil, as agreed. Held, that the transaction constituted a scheme to avoid the statute against usury and that plaintiff could not recover upon such assignments.
    Appeals in two actions by the defendants from judgments of the justice of the Eighth District Court in favor of the plaintiffs.
    John Callahan and William W. Cook, for appellants.
    David C. Myers, for respondent.
   Daly, P. J.

The plaintiff sues as the assignee of W. P. Dunlap, who, it .is claimed, holds an assignment from the, defendants Toy and Downey, respectively,’of wages due, .them from the Postal' Telegraph Company, of which they were employees. The assignment of wages was made before they became due in consideration of a loan - or advance of money. These actions were originally brought against the company by this plaintiff, but Toy and Downey were impleaded as. claiming the wages and disputing the assignments on the ground of usury in the transaction for the'loan or advance.

The justice found in favor of the plaintiff in each action, giving judgment against Toy for $16 and' against Downey for $20, the balance claimed to be due and remaining unpaid of the wages assigned, the assignment in each case being for $36. The two appeals were argued • together, and the court is referred to- the records in .both cases as presenting the facts upon which each is to be determined. The question to be considered is whether the-defense of usury was established by a preponderance of proof on the part of the defendants. The facts appear to be as follows:W. P. Dunlap, who is'sáid to reside in Philadelphia, carries on the business of lending or advancing money in the city of New York to employees upon assignment of wages or 'salary to" fall due. His son, James W., the plaintiff in this action, advances the money to the borrower, upon the recommendation of another son, John L., who receives from the borrower a sum- agreed, upon for the- loan. In each, of these cases the sum agreed upon and received by John L. was $11 for a loan of $25. The controversy is whether Dunlap and his two sons were engaged in one business, so that the exaction by John L. affects the loan and assignment.

That the Dunlaps were all engaged in one business, either as principals or as agents for each other, or as assisting each other in business, admits of no doubt. The method of operating the business is as follows: John L. advertises to lend money to employees; they call upon him at his residence, No. 301 "West Twenty-first street, in this city, where the amount of the loan is fixed, and the sum to be paid him for it is agreed upon. This is clear from the proof in the Downey case, which is very full upon that point. Downey applied first for a loan of $20, and asked what it would cost. 'John L. told him he had better take $25. Downey asked what it would cost, and John L. replied: “Thirty-six dollars.” Downey told him he only needed $20. John L. told him there would only be a difference of a dollar. So Downey decided to take $25. He was told to call again, and the next day John L. went down to the company where Downey was employed to make inquiries, and then told him to come -with a reference. When he did so. John L. drew up papers for him to execute, being an assignment to “ James W. Dunlap, agent,” of $36 of wages, and the other being an agreement to pay John L. $11 “ for services and expenses in procuring the loan.” The papers having been executed by Toy and Downey, John .L. gave them each a paper addressed to J. W. Dunlap, stating that an advance of $36 was desired and that the applicant “ has executed the necessary instruments.” Toy and Ljowney took that paper to James W., who lived on the opposite side of the street', on the same block with John L., and received from James W. his check upon a bank for $36, to the order of each borrower, who indorsed it. It was then cashed by James W. and the full amount, $36, handed to the borrower, who receipted for it to James W., as agent, assigning his wages to that amount. The borrower then returned to John L., according to previous understanding with him, and paid him the $11 theretofore agreed upon. All of the instruments or papers in the transaction were made out upon blank forms produced and filled up by John L: and James W., respectively.

The contention of the plaintiff James W. that the advance made by him as agent of W. P. Dunlap was unconnected with the agreement for the payment to John L. is disposed of by the mere statement of the facts. It is not necessary for the defendant to prove that James or his father shared in the $11 received b.y John,, for if the whole business was carried on by -them in order to profit John alone, the result would have been the same as if they .shared in the-proceeds; the only question being whether the $11 received- by John was upon an- agreement for the payment of that sum for the loan of $2,5, .and whether it is to be necessarily inferred from the course of business that the loan was not to be made unless such a payment was agreed to.

Ho evidence was offered to show that the $11 exacted by John L.. Dunlap was actually intended :as a payment for services and expenses in procuring the loan of .$36. On the contrary, from the transaction as detailed above, it seems that it was fixed in advance as the cost of a loan of $25, and it is manifest that the roundabout course of having the application made to John L. in the first instance, and the agreements made with him, and then having- the borrower sent out of the house to his brother to obtain the whole amo'unt named in the assignment, with an understanding that he was to return and pay John L. the charge agreed Upon,'is a mere scheme to try and cover up the connection between the parties, and the .single nature of the whole transaction, and to give a fictitious appearance of Iona fide -services performed by John L. It is quite certain that no loan would be made by James W. until the necessary -instruments had been executed by which the deduction or payment for the loan had been fixed in advance by John, and the loan is thus shown to be dependent upon and in consideration of such agreement. As1 that agreement was- usurious, no part of the loan can be recovered, and the assignment taken to secure it is void.. . >

These cases -differ from those cited by the respondent, where no agreement for unlawful interest is proved, and it is merely shown that a charge, for commissions or services is made after the agreement for the loan.- Morton v. Thurber, 85 N. Y. 550; Guggenheimer v. Geiszler, 81 id. 293. In the Downey case the charge of $11 was fixed and agreed to when the loan was first applied for as a charge for the loan, and it was not until afterwards that the borrower was required to sign a paper in which the charge was specified to be for services and expenses. In the case.of Toy he was simply required to sign certain papers to go and get the $36 and to bring back $11 of it to John L. Dunlap. Ho evidence was given of the rendition of any services for which the chárge was made. ■

The fact that Dbwney was tó be charged a dollar more if he took $25 than if he took $20 is strongly indicative that the charge was really for interest rather than for services. That charge, like interest, bore a relation to the amount of the loan, but the services would be the same for a loan of $20 or $25. The same inquiries would have to be made and papers drawn for either.

It is claimed that the plaintiff is not affected by the transaction between John L. and the borrower, because there is no proof that such agreement was known to the plaintiff or to his father, the lender of the money. But, as the proof shows that the business was carried on in fact through the agency of both the plaintiff and his brother, John L., that the transaction commenced by the advertisement which brought the borrower to John L., and that he was in effect the sole, active agent for making the loan, with full power from the principal to fix the terms of it, the latter is undoubtedly bound by his acts. It is not the case of an agent, without the knowledge of the principal, exacting a charge for his own benefit.

It is not easy to prove usury by direct testimony. That a plan or scheme for evading the Usury Law, by a form of transaction" intended to_ cover the unlawful agreement, has been resorted to by the parties is usually a matter of inference from the facts proved. It is easy to see that if the brother who advertised for, received and investigated applications also paid over the money upon an agreement to deduct inordinate sums for pretended charges and expenses, a simple issue would be presented as to the bona fides of the transaction. When, therefore, an involved system is adopted without necessity the conclusion is inevitable that it is intended to throw difficulties in the way of determining whether the parties were acting in good faith or illegally. The case resembles in its leading features that of Braine v. Rosswog, 13 App. Div 249. The difference between the cases is that no proof is offered here of a sharing by the alleged principal with the agent in the sums retained by the latter out of the loan; but that is not essential to sustain the defense of usury, if the authority to retain such sums is to be inferred from the regular course of the business as carried on by the principal through his agents.

Judgment reversed and new trial ordered, costs to abide event.

MoAdam and Bischoff, JJ., concur.

Judgment reversed and new trial ordered, costs to abide event.  