
    ELIZA W. WHITE, et al., Plaintiffs v. EDWARD M. BENJAMIN, Defendant.
    
      Usury must be proved by clear and positive proof, it is never presumed.
    
    The note, that is the subject of this action, was executed and delivered upon the surrender of a note given for a similar amount, and bearing date of January 1, 1884. The latter note was given for a note of same amount, bearing date of January 1, 1883. The evidence does not connect the last note with any preceding loan or note. On January 1, 1881, ’ a note of §100,000, payable in eighteen months from date, was delivered by defendant to plaintiffs. The evidence fails to connect this last note with the note in suit sufficiently to warrant any consideration for it or for any loans which are alleged to have preceded the same.
    Held, that any usury which is alleged to have tainted the loans which preceded the note last mentioned, is not connected by the evidence with the note in suit, and the defence of usury fails. In reference to the checks that were offered in evidence and claimed to represent payments of a portion of the profits of defendant’s business, the evidence does not warrant a finding that they were the result of a usurious agreement.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.
    
      Decided April 11, 1892.
    Motion by defendant for a new trial on exceptions to be heard in the first instance at the general term.
    
      Whitlock & Simonds, attorneys, and W. C. Beecher and Alex B. Simonds of counsel, for plaintiffs.
    
      Smith & Dougherty, attorneys, and J. Hampden Dougherty of counsel, for defendant.
   By the Court.—Dugro, J.

This action is upon a note for one hundred thousand ($100,000) dollars, dated January 1, 1885, payable in eighteen (18) months. The defence is usury. The exceptions were ordered to be heard in the first instance at general term.

It seems that the note, made the basis of this action, was given upon the surrender of one for a similar amount, dated January 1, 1884 •, and that the latter was given for one of a similar amount, dated January 1, 1883. The last note is not connected by the evidence with any preceding loan or note.

It appears that on January 1, 1881, a note of one hundred thousand ($100,000) dollars, payable in eighteen months, was delivered by the defendant to the plaintiffs. This note is not sufficiently connected with the note in suit to warrant its consideration, as that of the loans which are alleged to have preceded it. The usury, therefore, which is alleged to have tainted the loans which preceded the note last mentioned, is not connected by the evidence with the note in suit.

A question still remains with respect to the checks which were offered in evidence and which were claimed to represent payments of twenty per cent, of the profits of the defendant’s business. It may be said that the evidence does not warrant a finding that they were the results of a usurious agreement.

The exceptions to rulings upon the admissibility of evidence have been carefully examined and none of value found.

The motion for a new trial upon the exceptions must be denied and judgment ordered for the plaintiff upon the verdict.

Sedgwick, Ch. J., and Gildersleeve, J., concurred.  