Emmons v. Barnes 55 N.Y. 643

Charles Emmons, Respondent, v. Harvey Barnes, Appellant.

(Argued November 19, 1873;

decided November 25, 1873.)

This was an action upon a promissory note, the defence, usury.

The note was negotiated by one Smith, in whose hands it had been placed by defendant. Smith delivered it to one *644Appleby, receiving, in part payment, the relinquishment of an indebtedness of the former to the latter, the balance to be paid in money. Appleby offered to pay the balance then, but Smith stated he preferred to draw it in small sums, as he wanted it; on the 3d of February, 1871, the alleged usurious agreement was made. Meld, that by the agreement under which Appleby received the note, he became liable to pay Smith the full balance; the transaction was valid and complete, and the rights of each party fixed and enforceable; and that the same could not be vitiated by a- subsequent usurious agreement.

W. B. Marling for the appellant.

Thomas B. Odell for the respondent.