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(No. 28.)

Separate answer by an indorser of a promissory note, that the same was indorsed without any consideration, for the maker's accommodation, and delivered by the maker in payment of a precedent debt, and to secure a usurious rate of interest.

SUPREME COURT.

John E. New
agt.

Erastus Wheaton, impleaded with Joseph

McArdle.

The defendant, Erastus Wheaton, in answer to the complaint of the plaintiff,

First. Denies that he, this defendant, delivered said note to the plaintiff; and he denies that he is justly indebted to said plaintiff, on said note, in any sum whatever.

Second. He alleges that he indorsed said note at the request of the said McArdle, and solely for said McArdle's accommodation, and without any consideration moving to this defendant, either from said plaintiff or from said McArdle, or from any other person; all which, at the date of said note, was well known to the plaintiff.

And he further states, on information and belief, that said McArdle transferred and delivered said note to the plaintiff, as collateral security for the payment of a precedent debt of said McArdle to said plaintiff, and also to secure the payment of the illegal rate of interest, agreed to be paid as hereinafter stated, and for no sufficient consideration to charge this defendant as indorser; and said plaintiff did not release or extinguish said indebtedness, or give any sufficient consideration for said note.

Third. He further alleges, on information and belief, that at the time of the making of said note, said McArdle was indebted to said plaintiff in the sum of $350.52, being the amount of a certain judgment in favor of said plaintiff, against the said McArdle, and the interest theron to the 21st day of December, 1855; and before the making of said note, to wit, on or about the 21st day of December, 1855, it was corruptly, and contrary to the statute in such case made and provided, agreed, by and between said plaintiff and said McArdle, that the plaintiff should forbear and give day of payment to said McArdle of said sum of $350.52, and that the said McArdle should pay said plaintiff, and the said plaintiff should take and receive for the forbearance of said sum of $350.52 for the space of three months, a greater rate of interest than the rate of seven dollars on $100 for one year, to wit, the sum of $36.64 for the forbearance of said sum of $350.52 for the space of three months, and that said McArdle should make and deliver to the plaintiff the note mentioned in the complaint, to secure the payment of such illegal rate of interest; and the note mentioned in the complaint was made and delivered to the plaintiff, by said McArdle, in pursuance of said corrupt agreement and to secure such illegal interest, and the cause of action in the complaint set forth is identical with, and arises out of, the above mentioned corrupt agreement, and is therefore void.1

1 The answer set up another and further defence of usury, slightly varied from the above, which I have omitted.

A party setting up the defence of usury must aver, clearly, every particular necessary to establish the usury charged, and must distinctly negative any supposable fact, which, if true, would render the transaction innocent or lawful. An answer, therefore, which does not aver that the excess of interest was ever exacted or paid, is insuffi

(No. 29.)

That maker or indorser of note or bill was an agent of defendant, without authority, and to the knowledge of plaintiff.

Title of the Cause.

And these defendants, further answering the complaint of the said plaintiff's, say:

That although the said A. B. and C. D. were the agents of the said defendants, E. F. and G. H., and conducted and transacted the business thereof in their names, as such agents, yet they were agents with limited powers and authority, of which the said plaintiffs had or were legally chargeable with notice, and that, as such agents, they had no power, right or authority whatever to use their name, as such agents, for any purposes whatever, except such as were for the use, benefit and business purpose of said defendant; nor had they, in their character as such agents, any right, power or authority whatever to make, draw, indorse or accept any checks, drafts and bills of exchange, except such as were made, drawn, indorsed or accepted for the use, benefit and business purposes of the defendants aforesaid, of all which the said plaintiffs had or are legally chargeable with notice.

cient as a plea of usury. (Banks v. Van Antwerp, 5 Abbott, 411.) But in Catlin v. Gunter (1 Kernan, 368), the Court of Appeals held that where, on the trial, the evidence tends to prove an usurious agreement, which differed from the one alleged in the answer in several particulars, but not in its entire scope and meaning, and the plaintiff gives no proof that he was misled thereby, to his prejudice, the variance is immaterial and should be disregarded, or an immediate amendment allowed. The provisions of the Code have changed the strict rule, which formerly prevailed, as to variance in usury cases, and those provisions are applicable to such cases.

(No. 30.)

Answer in an action to recover damages for personal injuries by reason of negligence and carelessness of the defendant in leaving an open sewer, not properly guarded during the night time; 1st defence, denials, &c.; 2d defence, that the neglect, if any, was that of the workmen of defendant's contractor, who exercised an independent employment; 3d defence, that injury was caused by plaintiff's own negligence.

SUPREME COURT.

Hiram E. Storrs

agt.

The City of Utica.

The said defendant, in answering the said complaint, denies:

First. That at the time mentioned and stated in the complaint, it had the charge and control of the public

1 The second defence in this answer is based upon the principle recognized in Blake v. Ferris, 1 Selden, 48, and Pack v. Mayor, &c., of NewYork, 4 Selden, 222, namely, that where one in the exercise of his lawful rights, contracts with another, exercising an independent employment, to perform a work which he has full authority to do, he is not responsible for the negligence of the servants of the contractor. But see limitation of this principle, Congreve v. Morgan, 5 Duer, 495. The complaint to which the answer in the text was interposed, is substantially as follows:

SUPREME COURT-CHENANGO COUNTY.

Hiram E. Storrs
agt.

The City of Utica.

Hiram E. Storrs, plaintiff, complains in this action against The City of Utica, defendant:

That the said defendant, being a municipal corporation in this State, duly incorporated, by the name of "The City of Utica," and having,

streets in said city of Utica, except as hereinafter admitted, &c., [setting forth various denials and counter statements.]

as such, the care, charge and control of the public streets within the limits of said city, did, on or about the 27th day of September, in the year 1852, by its agents, servants or employees, open and excavate a certain ditch or sewer, so called, in or along the street, within the corporate limits of said city of Utica, called and known as Geneseestreet, in said city, being a public street therein, to a great depth, to wit, to the depth of twelve feet, for several rods in and along said street, and of great width, to wit, of the width of six feet, in and upon which said public street the people and public were used and accustomed to travel, and might lawfully travel with teams, carriages, &c.

And the said defendant, at the time aforesaid, negligently and carelessly left and permitted the said deep ditch to be and remain open and unprotected in said street in the night time, and negligently and carelessly neglected to put up or keep any guard, barrier or protection of any kind, around said deep ditch or sewer, to keep travelers and passengers from falling therein, and also negligently and carelessly omitted to keep up any lamps or lights along said street, to enable passengers and travelers thereon to see and discover said ditch or sewer, and to avoid falling or driving into the same.

And the plaintiff says, that in the night time, while riding in a wagon or carriage along said street, as he lawfully might, and while said deep ditch or sewer in said street was by defendant left open and unprotected, and without any guard of any kind to keep persons from driving or falling into said ditch, and while no lights or lamps were kept up or lighted, to enable plaintiff to see or discover the same and avoid said ditch, the night being dark, and said street not being lighted, and said ditch being carelessly left open as aforesaid, at an early hour in the evening, to wit, &c., he was, by reason of said defendant's carelessness and negligent conduct aforesaid, overset in said wagon, and thrown and precipitated out of the same into the said deep ditch, and greatly hurt, injured, &c., [stating the damages,] which injuries arose and happened wholly by reason of the culpable and gross negligence and carelessness of the said defendant in the premises, and without fault upon his part; and he claims damages therefor to the sum of $5,000, with costs.

H. BENNETT,
Plaintiff's Attorney.

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