[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 201 The testimony of the defendant as to his dealings with Wood and Cole, the clerks of plaintiff's testator, was not within either the letter or the spirit of the prohibition contained in the Code. The prohibition is confined to personal transactions with a deceased party, and does not extend to transactions with the agents of such party. The evidence of the defendant was, therefore, properly admitted.
We think, also, that the evidence was sufficient to sustain the finding of the referee that the note in suit was tainted with usury. The defendant testified that at the time of giving it he paid interest on the amount at the rate of one dollar a day for $1,000; that it was given in renewal of other notes, on which the same rate of interest was paid, and that the same rate was paid on the note given for the original loan; that all the notes were delivered to, and the interest received by Wood or Code, clerks of the plaintiff's testator, at his banking-house. There was no pretense that any part of this interest was paid to Wood or Cole as commission for their services, or for their benefit in any way, or otherwise than as the clerks of the testator.
Mr. Wood, one of the clerks, contradicted the defendant's statements. Mr. Cole, the other clerk, testified that he knew of notes received from defendant by the deceased; that defendant sometimes paid one dollar on $1,000 for loans, and witness did not remember any at a less rate; that witness made some of them by direction of the deceased. This evidence was competent for the purpose of showing that Cole's authority was not restricted to taking seven per cent on loans. *Page 202
Even though it were not shown that the original loan was usurious, if the note given in renewal was tainted with usury that security was void, and an action could not be maintained upon it, whatever right the plaintiff might have had to sue for the unpaid balance of the original loan.
The order of the General Term should be reversed, and the judgment upon the report of the referee affirmed, with costs.
ANDREWS, EARL and DANFORTH, JJ., concur; FOLGER, J., dissents; CHURCH, Ch. J., and MILLER, J., absent at argument.
Order reversed and judgment affirmed.