
    Manning v. Tyler and another.
    
      Pleading defence of usury.
    
    The Code has not relaxed the precision required in stating the defence of usury; an answer which merely avers usury, in general terms, is deemed frivolous, on a motion for judgment.
    Appeal from the general term of the Supreme Court, where a judgment against the defendants, on the ground of the frivolousness of their answer, had been affirmed.
    This was an action against the defendants, as maker and indorser of a promissory note for $300. The answer averred that the plaintiff made a loan to the maker of the note, upon which the other defendant was an accommodation indorser, on the security thereof, at a greater rate of interest than seven per cent, per annum; that the original note was renewed, from time to time, and upon each renewal thereof, the plaintiff received a greater rate of interest than seven per cent., wherefore, the answer averred, that the note sued on, which was the last of the series of renewals, was usurious and void.
    aPPtica/fci°n °f the plaintiff to a justice of the court, judgment was given on account of the frivolousness of the answer, under § 247 of the code; which having been affirmed at general term, this appeal was taken.
    Parker, for the appellants.
    Porter, for the respondent.
   Bacon, J.

That the answer in this case is bad, within all the rules of .pleading, heretofore recognised in the courts, cannot, I think, be questioned. It consists, in effect, of nothing more than a general averment that the note on which the suit is brought is void for usury. It does not aver what the usurious agreement was; between whom it was made; the quantum of usurious interest that was agreed upon and received; nor that the agreement was intentionally usurious and corrupt. The old rule of pleading required all this particularity. Thus, in Vroom v. Ditmas (4 Paige 526), the Chancellor, speaking of the manner in which usury must be set forth in a pleading, says, “ the defence must be distinctly set up in the plea or answer, and the terms of the usurious agreement, and the quantum of the usurious interest or premium, must be distinctly and correctly set up.” See also, to the same effect, New Orleans Gas Company v. Dudley (8 Paige 452); Curtis v. Masten (11 Id. 15), and numerous other cases. In the case of the New Orleans Gas Company v. Dudley, the Chancellor, speaking of an answer thus bald and deficient in these essential elements, says, that such a pleading would certainly be considered bad, both in form and substance, if pleaded as a defence to a suit upon a bond or evidence of debt, in a court of law.

Under our present system, which requires the facts constituting a defence to be plainly and concisely set forth, this rule cannot be deemed to be relaxed; and so are the cases, Fay v. Grimstead (10 Barb. 321-9); Gould v. Horner (12 Id. 601). The answer, then, is bad in substance for the *want of these essential allegations, .and being thus fatally defective, the defendant having presented to the court below no affidavit of merits, nor made any application to amend the pleading, s.o as to present a defence, the judgment here should be final against him.

Everything stated in this answer may be true, and yet no usury whatever have existed in the transaction; since, there may be many cases where more than seven per cent, is actually received upon a loan, and yet the transaction be entirely uninfected with usury; and the law will never presume a corrupt and usurious, nor, indeed, any other unlawful agreement, from a state of facts that-is equally consistent with a lawful purpose.

The case of Catlin v. Gunter (11 N. Y. 368) in no respect aids the defendant. That case turned entirely on the question of variance; the answer set forth the defence of usury, in a full and unmistakable manner, and cpuld not be objected to as a pleading in any form; the usury proved on the trial differed in several particulars from that alleged, but not in its entire scbpe and meaning; and the court consequently held, under the provision of the code applicable to variances and the power of amendment, that- the variance, it not having been alleged that the party was misled by it, should have been deemed immaterial. It is conceded, in the opinion of the court in that case, that if the answer had been,in general terms, that' the' note was, at its inception, negotiated upon a usurious consideration, it would have been bad for its generality. That is the whole scope of the answer in- this case.

It is insisted, that- the remedy of the plaintiff was, to move, under § 160 of the code, to^make the answer more certain and definite. It is very true, that resort might have been had to this section, if the plaintiff had elected to compel the defendant to put in an issuable answer; but' that is only one of the remedies which the law affords. If the answer is so bad, that it presents no defence at all, then, another proceeding is provided, by which it can be disposed of in a summary manner, and the delay which the defendant obviously seeks (and which, in this *case, he has succeeded in oh-taming), by such a naked pleading, be defeated. (Code § 247; People v. Macumber, 18 N. Y. 315).

Such was the relief sought by the plaintiff in this case, and the court properly determined, upon a view of the pleadings, that it presented no defence, and gave judgment accordingly. The judgment should be affirmed.

Denio, J.

(Dissenting.)—It is not now a question whether the answer ivas frivolous, but whether it set forth a defence to the action, which was sufficient in substance. The proceeding by which the plaintiff obtained judgment was analogous te the former practice, by which a party was permitted to move for judgment on account of the alleged frivolousness of a demurrer, or bill of exceptions. If the point was entirely plain, judgment was given at once, without the delay which would attend its being brought up in its regular course among the serious litigations pending in the court; but if it presented matter for argument, the motion was denied, and the case was brought forward in the usual manner. On the review of the judgment, the question ivas, whether it was erroneous in law, or otherwise, and not whether the point Avas more or less clear; nor Avhether it Avas right "to dispose of it summarily. The case alloAvs such a motion to be made, on an an-SAver or reply alledged to be frivolous, and in such cases, the allegation of friAmlousness is in the nature of a general demurrer. I have thought it necessary to make this explanation, because it has been argued, that Avhatever the merits of the answer might appear to be, upon a full examination, it was not so plainly bad, that it could be disposed of, upon a motion grounded on alleged frivolousness.

It cannot be denied, but that the answer lacks the degree of particularity which has always been considered necessary in setting up a defence of usury. The cases' are numerous and decisive which hold that the terms of the usurious contract should be stated, so that it shall appear what rate or amount #of interest was taken or secured, and on what sum and for what time; in order that the other party may be informed of the case he is required to meet. But it is obvious, that the case may be such, that the plaintiff would not stand in need of this information; he might know, upon the defence being interposed, precisely what the defendants’ pretence would be, and might elect to go to trial without further delay; if he should elect to do so, no wrong would be done to either party. But he has a right to require the particulars to be stated ; and the question is, in what form is this requirement to be asserted.

Formerly, if a plea was defective for want of particularity, but a substantial defence was presented, the objection must have been made by special demurrer. This, I think, was the case, where usury was pleaded in general terms, without setting out the particulars of the usurious contract. Hinton v. Roffey (3 Mod. 35; s. c. 2 Show. 329) was decided before the statute (4 & 5 Anne, c. 16) requiring defects of form to be specially stated in the demurrer. To debt on bond, the defendant pleaded, that it was corruptly agreed that interest should be paid for it above the rate of six per cent.; the plaintiff demurred, and judgment was given in his favor; the court saying, according to the report in Shower, that the corrupt agreement ought to be specially and particularly set forth, and the quantum of interest; otherwise, the plaintiff can never tell what to answer.

In Hill v. Montague (2 Maule & Selw. 377), which was also debt on a bond, the plea was precisely the same as in the case reported in Modern and in Shower; and the plaintiff’s demurrer assigned for cause, that it did not allege or specify any of the particulars of the alleged usurious contract; nor the time of such forbearance; nor the sum forborne: nor the sum to be paid for such forbearance. The court held the plea bad; repeating the remark made by the court in Hinton v. Roffey, and adding—“ The party against whom it is pleaded may be aware of the contract, but he cannot know in what particular it is meant to be assailed, or wherein the other side imputes vice to it.”

In treating of the degree of certainty required in a plea in bar, Chitty lays it down, that a general plea of usury, not stating *the particulars of the contract or the sum to be forborne, is bad on special demurrer, and he refers to this case in Maule and Selwyn (1 Chit. Pl. 527). And Saunders lays down the rule thus:—“ The chief requisite of a plea of usury is, that it should state the corrupt contract and the usurious interest, with the greatest precision and particularity, to show how the usury was committed, and that the party may know what to answer; and if it be too generally stated, it will be held bad on special demurrer. (Vol. 2, p. 895.)

In New Orleans Gas Company v. Dudley (8 Paige 452), the allegation of usury in an equity suit to foreclose a mortgage was, that there was usury in it, either by a pretended sale of property at more than its value, or in some other way. The chancellor held the allegation insufficient, and said, it would be defective in a court of law, both in form and substance. An alternative allegation of a material fact was always bad. (Steph. on Plead. 387.) Independently of this dictum, which I think does not touch the case, I have not found any authority, in which it is intimated that an allegation of usury in the contract would be bad on general demurrer, for lack of stating the particulars of the alleged usurious contract.

In the case under consideration, the contract sued on, which was a promissory -note, is set forth in the complaint. The answer alleges that the note was the last one of a series Of notes between the same parties; the first one having been given on a loan of money to the maker, .by the plaintiff, at a higher rate of interest than seven per cent., and that the other notes were successively given in renewal of that one, and that, therefore, the note sued on is void for usury. If the rate of interest had been stated—-as, by adding, “ to wit, at the rate of ten per cent, per annum ”—I suppose, the answer would have been unexceptionable; and on the trial, a variance as to the amount, of interest would not have been material, unless it had been proved that the plaintiff was misled. (Catlin v. Gunter, 11 N. Y. 368.) If I am right thus far, a good defence was stated in the answer; but it was defectively stated, and that defect, under the former rules, was required to be pointed out by special demurrer, if the plaintiff would avail himself of it. The c0(^e *a^ows a demurrer to an answer, which embodies new matter, where, upon its face, it does not constitute a defence. (§ -153.) It nowhere recognises a demurrer to an answer for defect of form, or want of particularity; and the theory upon which that system was formed was, that parties were not to be prejudiced by mere lack of form. But it moreover .makes a special provision for the case of deficiencies of the precise character of those which exist in this answer; for it declares, that where the allegations of a pleading are so indefinite or uncertain, that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain by amendment. (§ 160.) It has been shown, by a reference to the judgments in Hinton v. Roffey, and Hill v. Montague, that the reason for requiring the particulars for the usurious contract to be stated is, that it might be apparent what the precise nature of the charge of usury was. I am, therefore, of the opinion that the plaintiff’s remedy, for the want of particularity in the' answer, was by a motion under this section of the code.

That remedy is, in its nature, exclusive; for it would be preposterous to hold, that the plaintiff might apply by motion to have the pleading made more definite, but might equally, at his election, treat it as disclosing no defence whatever on its face, and apply for a peremptory judgment. If he could take the latter course, he would never make a motion under the 160th section; for all he could desire, in any case, would be to have judgment in his favor. This court has repeatedly taken that view of the section. (Wall v. Buffalo Water Works Co., 18 N. Y. 119; Seeley v. Engell, 13 Id. 542; People v. Ryder, 12 Id., 433; Prindle v. Caruthers, 15 Id., 425.) The last of these cases is very much in point. The plaintiff sued on a contract, not negotiable, and which was for the payment of an annual sum to one H. C., or his wife, or the longest liver of them. ‘The action was in the name of a third party, who averred in his complaint that the contract was, on a certain day, his property by purchase, without saying from whom or on what consideration, or showing in whom the right was vested when the purchase was made; and» the case arose on demurrer. The answer which we gave to the ""objection of want of definiteness was, that “ the remedy for all defects of this nature is by motion under § 16 of the Code, to make the faulty pleading more definite and certain.” It was added, that that proceeding had taken place of demurrer for want of form. (Per Johnson, J.)

The result of these views is, that the judgment ought to be reversed with costs, with a direction to the Supreme Court to allow the plaintiff to move to correct the answer, or to bring the case to trial upon the present pleadings, at his election, and upon such terms as to costs as that court may think fit to impose.

Clerks, J., also dissented.

Judgment affirmed. 
      
       See Dagal v. Simmons, 23 N. Y. 491; Archer v. Shea, 14 Hun 493; Bank of Auburn v. Lewis, 19 Alb. L. J. 178.
     