Wyeth v. Branif

Barnard, P. J.:

The evidence does not sustain the finding upon which .the judgment was given by the court below.

The plaintiff owned ia house and lot in'.the-county of.Richmond, upon which he had executed a mortgage for '$2,000 to one ©avid Moore. An action had been commenced to foreclose this mortgage, which had passed into a 'decree. To prevent a sale, the plaintiff agreed to give Thomas Branif, the father of defendant Branif, ten per cent, for a loan of the amount necessary to stop the sale. Branif, Sr., paid the amount of the judgment, and took an assignment from the executors of David Moore, and plaintiff paid him, Branif, Sr., $235, being for this ten per cent, and expenses.

The assignment was taken to defendant, who was then absent in Mexico. The plaintiff never saw the defendant in regard to the transaction. Branif, Sr., is dead.

Upon this state of facts, the court found a corrupt usurious agreement upon the part of the defendant, and set aside the assignment, also a sale made under the judgment, also the referee’s deed, and granted a perpetual injunction, restraining defendant Branif from ever enforcing the judgment which he had bought. This transaction was clearly not a loan to plaintiff, but a purchase by defendant Branif of a decree in foreclosure. Assuming the transaction to have been a loan to plaintiff, an agreement with his agent to pay him ten per cent, to procure the loan, does not bring the usurious agreement home to defendant. (Condit v. Baldwin 21 N. Y., 219.)

If the defendant himself had agreed to buy the mortgage and judgment for ten per cent., and to extend the time of payment, his title to the mortgage would have been complete. (Kellogg v. Adams, 39 N. Y., 28.)

Judgment should be reversed and new trial granted, costs to abide event.

Gilbert, J., concurred; Dykman, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.