
    Frederick A. Baldwin et al., Resp’ts, v. Ira E. Doying and Ano., Impleaded, etc., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 4, 1889.)
    
    
      1. Practice—When findings of fact conclusive.
    The findings of fact made by a referee and affirmed by the general term are conclusive upon this court.
    8. Same—When exceptions to refusal to find potent for reversal of JUDGMENT.
    In order to make exceptions taken to a refusal of a referee to find as requested, potent for a reversal of the judgment, it must appear that if the referee had found as requested, the result would have been necessarily affected.
    3. Usury—Statute against—How taken advantage of.
    The rule is well settled that whoever desires the aid of the statute against usury, through the interference of a court, must make out his title to relief by allegations and proofs.
    4. Same—Promissory note—Burden of proof.
    This action was on a promissory note. The defense interposed was usury. Held, that the burden of proof was upon the defendant to show the usurious exaction by the party, or his agent, who discounted the note.
    Appeal from a judgment entered upon an order of the general term of the superior court of the city of New York, affirming a judgment entered upon the report of a referee, awarding a judgment in favor of the plaintiffs and against the defendants.
    
      E. J. Meyers, for app’lts; John Loughlin, for resp’ts.
    
      
       Affirming 53 N. Y. Supr. Ct. R., 538.
    
   Parker, J.

This action was brought to recover, upon a promissory note for $1,650, dated August 7, 1883, made by one Willett Bronson, to the order of the defendant, Ira E. Doying, and endorsed by him, and also endorsed by the defendant, Thomas H. Beekman.

The defense interposed by the defendants, Doying and Beekman, was usury.

The referee, to whom the case was referred, to hear and determine, reported in favor of the plaintiffs for the full amount claimed to be due. The findings of fact, as made by the referee, justified his refusal to find the conclusion of law, requested by the defendants, that the note was usurious, and demanded the conclusions of law as made in his report.

We cannot review questions of fact. As to such questions, the findings of the referee, affirmed by the general term, are conclusive upon this court. Quincy v. White, 63 N. Y., 370.

The appellant contends that some of the requests to find; made by the defendant and refused by the referee, were based upon uncontradicted testimony. That the findings of the referee in respect thereto, were without evidence to support them, and that his exceptions thereto present questions of law, and are therefore reviewable here.

The refusals of the referee to find certain requests made by the defendants were, with the exception of the sixth and seventh requests, based upon either conflicting testimony, or circumstances proven, which tended to contradict the' testimony of witnesses produced on the part of the defendants, and are, therefore, not reviewable.

As to the sixth and seventh requests, we are unable to discover any evidence tending to contradict the testimony upon which those requests to find were based. Nevertheless, in order to make the exceptions taken thereto potent for a reversal of the judgment, it must appear that if the referee had found, as requested, the result would necessarily have been affected. Stewart v. Morss, 79 N. Y., 629.

The requests to be considered are as follows: Sixth request: “ That the defendant, Beekman, subsequently and on or in the latter part of August, applied to William A. Davis, to discount or procure to be discounted, the said note, and the said Davis undertook and agreed to discount or procure the said note to be discounted, at a discount of five per cent upon the face of the said note.”

Seventh request: “That on or about the 31st day of August, 1883, in pursuance of said agreement, to discount or procure to be discounted, said note, said Davis procured the same to be discounted, and delivered to the defendant Beekman the check of one Julius Fried for 1,567.98, as the proceeds of said note, after deducting the said discount of five per cent on the face of said note.”

The defendants, in their answer, allege in substance that William A. Davis procured the note to be discounted by one Julius Fried in pursuance of a corrupt and usurious agreement, whereby the said Julius Fried, the party so discounting said note, ' received and charged interest at a greater rate than prescribed by law, to wit., at the rate of twenty per cent per annum for the loan and forbearance of the sum of money mentioned in the note.

Upon the trial it appeared that Fried did not discount the note. It does not appear that Davis discounted it, and the defendants did not request the referee to so find. The defendants failed to show by whom it was discounted, or that the person so discounting it charged interest therefor at a greater rate than prescribed by law. They contented themselves with the proof that one of the endorsers went to Davis, who had previously assisted in procuring discounts of paper made and endorsed by the same parties, and that he agreed to discount or procure the note to be discounted, at a discount of five per cent upon the face of the note, and that Davis subsequently gave to such endorser a check of Julius Fried for the face of the note, less five per cent. This proof justified the findings requested, but did not demand a finding that Davis discounted the note, or that a greater rate of interest than that allowed by law was charged and received by the person discounting it.

The defendants, by omitting to make requests to find in such respect, apparently recognized the fact that the evidence did not warrant such finding in their behalf. Indeed the seventh request carefully recognizes the utmost extent to which defendants’ proof goes in the direction of the defense interposed. By it the referee is requested to find that Davis procured the note to be discounted (not that he discounted it), “ and delivered to the defendant Beekman the check of one Julius Fried for $1,567.98, as the proceeds of said note, after deducting the said discount of five per cent.”

It does not ask a finding that Fried discounted it, or that the discounting party only paid $1,567.98 for the note, but, in effect, that all the defendants received from the party who conducted the negotiations for them, and at their request, was $1,567.98.

The statute against usury is, like other statutes, to be obeyed, but the rule is well settled that whoever desires its aid through the interference of a court must make out his title to relief by allegations and proof. The Long Island Bank v. Boynton, 105 N. Y., 656.

The burden of proof was upon defendants to show the usurious exaction by the party discounting the note. Condit v. Baldwin, 21 N. Y., 219; Estevez v. Purdy, 66 N. Y., 447; Van Wyck v. Watters, 81 id., 352.

The result was not accomplished by proof of payment of a sum of money exceeding the legal rate of interest to a party undertaking, for a consideration to procure the note to be discounted.

Assuming the requests to find under consideration as having been found, then from all the findings it is apparent that Davis did not discount the note. In that which he did, therefore, he necessarily represented either the defendants or the discounting the note. If he acted as agent for the defendants, and it is fairly inferrible that he did, the plaintiff’s rights cannot be affected, in any manner, by proof of transactions between the. defendants and their agent.

Even could it be held that in what he did Davis was the agent of the party discounting the note (the most favorable proposition for the defendants, conceivable), still under the rule laid down in Stillman v. Northrup (109 N. Y., 473), the defendants have failed to establish their defense, for it was incumbent upon the defendants to show that Davis, as the agent of the discounting party, took the bonus with the knowledge and assent of such party. In the opinion of Earl, J., it is said that “the burden of establishing such knowledge and acquiescence rested upon the defendants, and they were bound to sustain that burden by satisfactory evidence. The defense of usury involving crime and forfeiture cannot be established by mere surmise and conjecture, or by inferences entirely uncertain.”

It seems to be clear, therefore, that had the sixth and seventh findings of fact been found by the referee as requested, the conclusion of law resulting from the facts found must of necessity have been the same. It follows that such refusals to find do not constitute error justifying a reversal of the judgment.

The judgment should be affirmed.

All concur.  