I am unable to concur in the opinion of Mr. Justice Laughlin for the following reasons: First. There was sufficient consideration for the note. It was given for $60,000, actually loaned by the plaintiff to W. L. Stevens, a brother of the defendants. Prior to the time the loan was made, W. L. Stevens and the plaintiff were members of the New York Stock Exchange, but the latter had been suspended. His efforts to be reinstated having failed, he sold his seat, and out of the moneys received the loan was made. W. L. Stevens, for certain reasons, desired to conceal from the Exchange the fact that he was the borrower, and he thereupon, in pursuance of an arrangement with the defendants, gave to them his note for $60,000, and they gave to the plaintiff the note in suit. The defendants still hold the note of W. L. Stevens.. The transaction was thoroughly understood by the defendants. One of them testified: “Q. But you knew that note had to be signed by you before your brother Lewis would get the $60,000 j A. I did. Q. And you knew that the $60,000 was necessary to save his firm ? A. Yes. He did get this $60,000 and he gave *565us his note. The firm has failed. Our note has not been paid.”
The case is distinguishable from Higgins v. Ridgway (153 N. Y. 130), cited in the prevailing opinion. There, the defendant made a note to his own order, indorsed it, and delivered it to a bank solely for its accommodation. It was held that a recovery could not be had since the note was made, without consideration, for the accommodation of the party who was trying to recover upon it.
The testimony of the defendants to the effect that they were informed by their brother that the giving of the note was a matter of form and they would not be called upon to pay it, does not prevent a recovery. Such testimony ought not to have been received. There are numerous authorities to the effect that parol evidence of an oral agreement made at the time of the making of a promissory note cannot be received for the purpose of varying, qualifying or contradicting its terms. (Jamestown Business College Association v. Allen, 172 N. Y. 291, and cases there cited.)
There is a line of authorities holding that parol evidence may be received to show a conditional delivery and that the note is not to take effect until the happening of some condition precedent. This was not a conditional delivery, but an absolute one. The contract became complete when the note was delivered in exchange for the money loaned. The note was given for a proper consideration. The defendants, by it, agreed to pay a given amount at a specified time. If an agreement had been made that the note should not be collected or that its payment should not be enforced, it would have amounted to nothing, because an action could, notwithstanding, have been maintained upon it when the same fell due. (Mead v. National Bank, 89 Hun, 102.)
Second. The evidence, as I read the record, does not establish that the loan was usurious. The note, upon its face, bears six per cent interest. It is true that about a year before the note was made the plaintiff signed a written statement in which he acknowledged that he was indebted to W. L. Stevens in the sum of $10,000; that he would endeavor to get reinstated on the Stock Exchange, and if he succeeded within two *566months in doing so he would enter into partnership with Stevens, and if he failed within that time he would sell his seat and lend the proceeds to Stevens, to be employed in his stock exchange business, “ on terms to be later agreed upon which will return Mr. Grannis not less than $10,000 a year.” This agreement was not acted upon, but about two weeks after the loan was made another agreement was entered into by which the plaintiff was employed by Stevens’ firm at a salary of $533 a month, or more, depending upon the amount of business which he brought in, and he did render some service.
The only evidence that the transaction was usurious is the statement contained in the agreement made in 1909 that the loan, if made, should yield Mr. Grannis not less than $10,000 a year, and that the interest on the note and the salary agreed to be paid would make that amount. This, I think, is insufficient to justify a finding that the loan was usurious.
The judgment and order appealed from, therefore, should be reversed and judgment directed for the plaintiff.
Judgment and order affirmed, with costs.