[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 483 Usury is a defense which can not be made available on the trial of a cause, unless it be pleaded; and the answer of Davis not showing that the contract of transfer and indorsement of the note by him to Noxon was usurious, the evidence tending to prove that fact was properly rejected. (Gould v. Horner, 12 Barb. 601;Watson v. Bailey, 2 Duer, 509.) *Page 485
The contract of indorsement, made by Davis, had no connection whatever with the usurious contract between Westervelt and Davis, and is not affected by it. The indorsement constituted a new contract between Davis and Noxon, upon sufficient consideration, and was valid and binding upon the defendant, although the note was void. (McKnight v. Wheeler, 6 Hill, 492; Churchill v.Hunt, 3 Denio, 321.) Indeed, the fact of the transfer of the note by the defendant to Noxon, as a valid instrument, is of itself sufficient to estop him from alleging, as against Noxon, or any one claiming under him, that the note was void. (DelawareBank v. Jarvis, 20 N.Y. 226.)
The judgment of the Supreme Court should be affirmed.