it seems to be well settled^ by several decisions in the Court of Appéals, that the mere fact that a note has been discounted in the country, made payable in the city of Hew York, and a portion or the whole of the proceeds paid to the borrower in a draft upon the city¿ at the usual price or cMrge for city drafts, does not render such note usurious. (Marvine v. Hymers, 12 N. Y. Rep. 225. Oliver Lee & Co.’s Bank v. Walbridge, 19 id. 134. International Bank v. Bradley, Id. 245.) Perhaps it might be held to be so, if .both the place of the payment of the note and the purchase of the draft were made' the condition of the loan. But nothing of that kind appears here, even conceding that the note was not in fact discounted until the borrower had received the avails. For aught that appears ih the finding of facts, the borrower desired the drafts for his own convenience; If the fact was otherwise it was for the defendant alleging the usury to prove it, and have the fact inserted in the finding of facts. But, upon looking into the evidence, it does not appear that any such condition was im* posed beforehand, or at least it does not so clearly appear as to warrant the court in interfering on the ground that such fact is not found.
The notarial certificate was properly received in evidence. The defendant does not deny the fact of having received notice of the non-payment of the note. On the contrary, his answer admits that it was received, though not until the 5th of April, after the note fell due. It may have been made on the right day and duly forwarded; and nothing is alleged in the answer to the contrary. The statute only applies where no notice has been received at any time. Such' is its plain language and obvious intent; (Sess. Laws of 1833, ch. 271, § 8.) It is unnecessary, therefore, to deter*103mine whether the verification of the pleading can be made to fulfill the statute requirement of an affidavit of denial annexed to the pleading. The judgment must, therefore; be affirmed¡
[Monroe General Term, June 4, 1866.WeUes, Dt Darwin Stmth and Jblmedn, Justicdsi]