I dissent. The plaintiff’s theory, which the jury,, by their verdict, sustained, was that, wishing to invest her money, she sought the advice of the defendant, and he undertook to invest it for her in Ohio securities at 8 per cent., the lawful rate in that state; and that until he could get the Ohio securities he would take her money, and give her his note for it, and secure it by bank stock. This he did, giving her the note in question, “with interest,”' and the certificates of bank stock, as collateral; that the defendant soon after brought and delivered to her certificates of stock in Ohio corporations, representing these to be the securities in question, and that they would yield her 8 per cent.; that he took away the bank stock, still leaving his note with her, as collateral. The Ohio stock that he delivered her was his own, and, we infer, was-not valuable. He subsequently paid her 8 per cent, for several: years. It was material to know whether this was a cover for usury, or whether the defendant imposed upon the plaintiff in the first instance, and led her to suppose that the 8 per cent, he was paying her was the proceeds of the Ohio stock. The intention of the parties was material. It was obscured by the circumstances, especially as they were sworn to by the defendant. It was, therefore, competent for the plaintiff to testify that she did not intend, to loan her money to the defendant, or—no objection being taken-to the form—to make a usurious agreement with him. Dillon v. Anderson, 43 N. Y. 231, does not hold otherwise. There the contract actually made was in writing, and spoke for itself. There was there no charge of fraud (Seymour v. Wilson, 14 N. Y. 567), or malice (McKown v. Hunter, 30 N. Y. 625), or usury (Thurston v. Cornell, 38 N. Y. 281; Bayliss v. Cockcroft, 81 N. Y. 363), or other crime in which the intent is the essential element under investigation and in doubt, but simply the question whether a party was bound by the contract he had signed. The opinion admits usury to be an exception to the rule there applied, and in Bayliss v. Cock-croft it is said that the authority of Thurston v. Cornell was not shaken in that respect by Dillon v. Anderson.
As to the admission of the inventory of the estate of plaintiff’s husband, made by the defendant, it was received to contradict defendant’s testimony about his relations with the plaintiff and plaintiff’s husband in his lifetime; the plaintiff’s testimony having been to the effect that, as he and her husband were intimate in their business and social relations, she naturally confided in him after her husband’s death. As the case was presented, we cannot say *326that this was absolutely irrelevant. There were exceptions to other testimony alleged to be irrelevant. In nearly every trial some irrelevant testimony will creep in, and, unless we can see that its tendency was to prejudice the party objecting to it, we ought to assume that the trial judge thought it safer to admit it, and trust to its inconsequence, than to exclude it, and thus run the risk of error in overlooking some other testimony which might malte it at least remotely relevant. I cite my observation and experience, not as authority for such practice, but as in harmony with it.
As to the “severe expressions” used by the trial judge, they were characterizations of the defendant’s acts in obtaining damaging receipts for interest from the plaintiff, qualified with the proviso that if the plaintiff’s version of the facts was true; but he also at the same time, in effect, said the receipts were fatal to plaintiff’s case, if defendant’s version was true. His language was plain and emphatic, but it conveyed a clear, and, I think, a true, idea of the situation, and we have no just occasion to reprehend it.. Plain words from the court, presenting the issue sharply and fairly, are very helpful to the jury. Moreover, I think the judgment was right.
HERRICK, J., concurs.