Bliss v. Sherill

Adams, P. J.

(dissenting) : The “ bonus ” exacted as a condition of the loan in question was the unconscionable sum of $10,000, which was about one-third of the amount actually loaned. By an arrangement entered into between the lender’s husband and the negotiator of the loan, one-half of this sum was paid over to the former and by him transferred to his wife’s bank account in reduction, as it was claimed, of a certain indebtedness owing by him to her. This arrangement was certainly a most ingenious, one, bub it requires something of a strain upon human credulity to believe that it was entered into and fully accomplished without the knowledge of the plaintiff. Upon the former appeal we held, that in transactions attending the plaintiffs loan the husband was in fact the principal, or, in other words, the alter ego of the wife, and that, under the circumstances of the case, the latter could not repose upon her ignorance and thereby defeat the principle of ratification. (24 App. Div. 280.) • Upon the second trial, the evidence, so far as it bore upon this feature of the case, was practically the same as upon the first, and consequently It seems tome that consistency, if nothing else, requires that we should adhere to and follow the former unanimous decision of this court, which, until reversed by a higher tribunal. is the law of the case. It is proper to addj however, that my conviction that the plaintiff’s judgment ought not to be permitted to stand is not based entirely upon the principle of stare decisis, for I think now, as I did when the cáse was here before, that the evidehce‘establishes clearly and satisfactorily a bald and unconscionable attempt upon the part of the plaintiff, through the agency of ner husband, to evade the consequences of an usurious loan.