
    Jonas P. Varnum, Adm’r of Charles J. Hayden, Resp’t, v. George W. Skinner and John Slater, App’lts.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    1. Witness — Credibility— Oharqe.
    In an action against the maker and endorser of a promissory note where the defense was usury, the endorser testified in behalf of the maker as to-the circumstances connected with the giving of the note and was uncontradicted. The court charged the jury that they were not bound by such testimony if it conflicted with the circumstances of the case and was so inconsistent with the attendant facts as that the jury should not give credence to the witness. Held, no error.
    3. Same — Usuby.
    The joint answer alleged that there was a corrupt and usurious agreement between the maker and plaintiff’s intestate by which the latter was to receive ten dollars over the lawful interest on the loan. The endorser testified that prior to January 1 he went with the maker of the note to see testator in regard to the loan, which he agreed to make on a note payable to witness’ order, and demanded ten dollars as a bonus, which was then paid, and that after January 1 witness took the note to intestate and received his check for the amount, less interest. Held, that the testimony related to a substantially different contract and was so improbable as to justify the jury in rejecting it.
    Appeal from a judgment entered in Monroe county on a verdict at the J une circuit, 1889, and also from an order denying the defendants’ motion for a new trial made upon the minutes of the court.
    
      W. H. Hdmonds, for app’lts ; Howard L. Osgood, for resp’t
   Macomber, J.

This action, which was brought to recover upon ja promissory note in the sum of $200, given by the defendants to the plaintiff’s intestate in the month of January, 1888, is defended lupon the ground of usury. The case as settled does not contain any certificate that the whole of the evidence given upon the trial is returned to us, and, hence, under the authorities which are now familiar to the profession, we are not able to review the question 'hether the verdict of the jury was against the weight of the evilence.

The defendant Skinner was the maker, and the defendant Slater ras the indorser, of the note in suit The joint answer of the defendants is, that there was a corrupt and usurious agreement between the defendant Skinner and the decedent, whereby the latter 'as to receive the sum of ten dollars over and above lawful interest upon the loan which was the consideration of the note, ’his agreement was alleged in the answer to have been made on the 2d day of January, 1888. Upon the trial, the defendant plater was called as a witness, and his testimony was properly excluded so far as the same related to any personal transaction with [he defendant; but he was permitted to testify in behalf of his jo-defendant Skinner, and the only question is whether this witjess has succeeded in making out a defense for his co-defendant, ’here was no evidence to contradict the story thus told by the tdorser, and the same was submitted by the learned court to the iry under instruction which substantially advised them that they rere not bound by such testimony if the same conflicted with the ' rcumstances of the case, and was so inconsistent with the ttendant facts as that the jury should not give credence to the fitness.

In this we think there was no error. Slater’s evidence is in subfcance, that some days before January 1, 1888, the defendant [tinner, who wished to raise the sum of $200, went with the wit;ss to the intestate and asked for a loan in that amount; where>on the decedent agreed to make the loan upon a note payable the order of the defendant Slater, and demanded a bonus of ten fllars, which was thereupon paid by Skinner to the decedent; id after January 1, 1888, the defendant Slater took the note to jayden, delivered it to him and received a check for $180, which is cashed.

It will thus be seen that the story so told by the witness related a substantially different contract from that set forth in the ¡swer, and was so improbable upon its face as that the jury was [stifled in rejecting it. Elwood v. West. U. Tel. Co., 45 N. Y., 549.

The judgment and order appealed from should be affirmed, with costs.

Dwight, P. J., and Corlett, J., concur.  