The complaint is based upon an alleged cause of action to recover a usurious payment under section 372 of the General Business Law. Usury involves a corrupt intent on the part of both lender and borrower. (Morton v. Thurber, 85 N. Y. 550; Salvin v. Myles Realty Co., 227 id. 51.)
The burden was on the plaintiff to establish both that the money was taken by the defendant and paid by himself as a usurious consideration for the loan.
The evidence shows that after the full amount of the loan had been paid to the plaintiff by the defendant (except only a sum retained by the lender to take up a prior mortgage) and after the *475parties had left the office where the mortgage had been delivered and the money paid over, the plaintiff at the request of the defendant handed to him the sum of $200. The evidence fails to show, however, any corrupt intent on the plaintiff’s part in transferring this sum to the defendant. He certainly did not consider that he was making a payment of interest or giving a bonus. Probably he intended it as a temporary loan or accommodation to the defendant. The plaintiff promptly thereafter asked the defendant to return the money and only some time later was told by the defendant that he was keeping the money because he had made the plaintiff the mortgage loan. In this the plaintiff did not acquiesce. The general question of the liability of the defendant to the plaintiff for the $200 is not before us. We have to do merely with the narrow question as to whether the payment was usurious. Clearly it was not.
The dismissal of the complaint without prejudice will not prevent the plaintiff’s bringing an action under some other theory for the recovery of the money.
All concur. Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ.
Judgment and order reversed on the law and complaint dismissed, with costs, without prejudice.