Lusk v. Campbell 10 N.Y. Sup. Ct. 607

STEPHEN C. LUSK, Respondent, v. JOHN C. CAMPBELL AND ANOTHER, APPELLANTS.

Alternative defenses—effect of one leing sustained— Usury.

In this action, brought to recover the amount due on a promissory note for $550, given by the defendant to the plaintiff, the defendant set up in his answer that the note was, by mistake, drawn for fifty dollars too much, or that, if there was not a mistake in drawing it, it was usurious. The referee found that it was by mistake drawn for fifty dollars too much, and deducted that amount from the recovery. Seld, that this result sustaining one branch of the defense, precluded the defendant from insisting upon the other, as usury cannot be founded on a mistake.

Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

Ralph E. Prime and E. R. Keyes, for the appellants.

J. P. Sanders, for the respondent.