Plaintiff sued to recover on a certain promissory note and for the foreclosure of his lien on collateral security received in connection therewith. Defendant pleaded usury as a defense and by way of counterclaim, and sought judgment canceling the note and directing the return of the collateral.
On the trial the plaintiff’s cause of action was admitted, subject to the defendant’s defense and counterclaim. Defendant, having assumed the burden of proof, read into evidence parts of a deposition made by the plaintiff on his examination before trial. Plaintiff read other parts of the same deposition. Defendant testified as a witness in his own behalf. Numerous exhibits were placed in evidence by both sides. Defendant then rested and plaintiff moved to dismiss the counterclaim. This motion was granted by the court after some discussion. Plaintiff then moved for judgment in his favor, whereupon the following colloquy took place: “The Court: Is there any rebuttal testimony? Mr. Raphael *142(plaintiff’s counsel): I thought your Honor granted the motion. The Court: I granted the motion to dismiss the counterclaim. I am now asking you if there is any rebuttal testimony. Mr. Raphael: No rebuttal testimony. The Court: Then say so. Mr. Raphael: The plaintiff rests. The Court: Make your motion. Mr. Raphael: I move for judgment in favor of the plaintiff for the relief demanded in the complaint. The Court: Motion granted with an exception to the defendant. The Court finds that as a matter of law no usury under Section 370 of the General Business Law or as indicated in Section 371 of the same statute, has been established by creditable proof. Exception to the defendant. I will give you thirty days stay of execution.”
What the trial court meant in calling for rebuttal testimony is not altogether clear. As the counterclaim was dismissed, the defense based on the same contention of usury likewise fell. The dismissal of the counterclaim, under the circumstances, would appear to have been one for failure of proof.
Appellant recognizes this, for in his briefs he contends that he introduced prima facie proof of usury. He asks that all disputed questions of fact be resolved in his favor, thus seeking the benefit of the rule of law applicable when the question is whether a prima facie case was presented.
Under the circumstances, even if we should reverse the judgment upon the ground that prima facie proof of usury was introduced, we should order a new trial and not grant to defendant a judgment on the merits. If we proceed on the theory adopted by the majority, that plaintiff indicated that he intended to rest on defendant’s case, and that the issue of usury thereupon became one for the trial court, then appellant is not entitled to the benefit of the most favorable inferences, but the trial court was entitled to draw such inferences from the proof as it deemed proper. So viewed, we think that upon this record the judgment should be affirmed. The evidence did not establish by a fair preponderance thereof that plaintiff received any consideration beyond six per cent for the forbearance of the loan of $5,000.
The defendant’s contention was that, in order to secure the loan, he was required to release certain contingent claims for possible profits under agreements made with plaintiff at a time long before the loan was requested, whereby defendant acted as investment counselor to plaintiff.
Plaintiff contended that these releases were not part of the transaction involving the loan, but that they were delivered in order to wind up separate business transactions before a loan would be made.
*143Defendant’s claim for contingent profits was extremely tenuous, for the agreement under which the profits might become due required completed transactions of purchase and sale, with resultant profits. It was conceded that no such completed transaction had taken place as none of the stocks had been sold.
One of the elements of usury is the existence of a corrupt purpose or intent, and, therefore, the trial court would be required to find, before determining that there was a usurious transaction, that it was the intention of plaintiff to obtain something of value beyond six per cent interest as an additional consideration for the loan. The burden of proving usury rests on the person asserting same and every presumption is against the violation of the law which usury involves. If a transaction can be construed in such a way as to render it valid, such construction should be given it rather than one which would render it illegal and criminal.
In Stillman v. Northrup (109 N. Y. 473), the court said (at p. 478): “ The defense of usury involving crime and forfeiture cannot be established by mere surmise and conjecture, or by inferences entirely uncertain. If, upon the whole case, the evidence is just as consistent with the absence as with the presence of usury, then the party alleging the usury has failed; and so it has been repeatedly held.” ¡
Defendant’s assertions concerning the circumstances under which the releases were delivered lacked conviction, and were evidently afterthoughts. His claims appear to be contradicted in several respects by letters and other documents in the case. Several months after the making of the first loan a renewal note was delivered, dated December 9, 1937. Defendant claimed that he had been required to give a second release as part of this renewal. The release referred to was dated November 30, 1937, or a week before the date of the renewal note. Appellant contends in his brief that the renewal note was delivered on November 30, 1937, but we find nothing in the record to support that contention.
The explanation given by defendant for the second release was that it was to discharge a contingent claim for profits held by defendant as investment counselor in connection with the purchase of certain St. Louis and Southwestern bonds which were bought by the plaintiff after the first loan was made.
Plaintiff, on the other hand, claimed in his examination before trial that the purpose of the second release was to eliminate any claim by defendant in connection with certain Chicago and Northwestern stock which defendant had sold to plaintiff under an option whereby defendant might repurchase the same. This option had apparently expired. Defendant had written asking for more time. The documentary proof supports plaintiff’s rather than defendant’s *144claim with respect to the obligations outstanding upon the date of the second release. In fact, we find no proof in the record of any new agreement to-pay for services as investment counselor made after the execution of the first release. Though defendant referred to the purchase of the St. Louis and Southwestern bonds thereafter, he gave no testimony showing the making of any new agreement for sharing profits.
Assuming, therefore, that the judgment is to be considered one on the merits, after both sides had rested their proof, it should be affirmed, as it was well within the province of the trial court to determine that usury was not satisfactorily proved.
The judgment should be affirmed.
Cohn, J., concurs.
Judgment reversed, with costs, and judgment directed in favor of the defendant, with costs. Settle order on notice, reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.