#### Julius M. Ferguson, Appellant, *v.*Franklin Bien et al., Respondents.

(Supreme Court, Appellate Term,

June, 1905.)

Negotiable instruments — Usury — Burden of proof — When error in charge to jury not cured.

The burden of proving usury by a fair preponderance of evidence rests upon a defendant who sets up that defense to an action upon his promissory note.

A charge to the jury, in an action against the maker of a prom- ' ’issory note who pleaded usury as a defense, that “ If the jury cannot make up their minds as to whom to believe, the plaintiff has failed to make out his ease and defendants are entitled to a verdict ”, is not cured by a further charge that “ The validity of the note is presumed, but that is subject to rebuttal, and when the rebuttal testimony is put in then the burden shifts again on the maker of the note ” as the expression about the shifting of the burden might be taken to imply possible relief of the defendants from their burden of satisfying the jury affirmatively of the truth of their allegation of usury, a burden subsisting to the end.

Appeal by the plaintiff from a judgment of the City Court of the city of New York, entered upon the verdict of a jury.

J. Aspinwall Hodge (L. O. Ferguson, of counsel), for appellant.

Franklin Bien and William Klein (Josiah Canter, of counsel), for respondents.

MacLean, J.

Usury was one of the defense's in this, an action upon a promissory note, and over it there was sharp contradiction. The plaintiff rested upon the presumption arising from possession of the note, its iptroduction in evidence, proof of partial payments tliereon and of the interest. The defendants in turn gave evidence of a deduction from the face value of the note and of statements by the plaintiff’s son acting as agent in the transaction. Respecting *619their controversy the learned trial justice charged at length and so explicitly that no exception was, or well could be, taken by cither side. Then the defendants’ counsel asked that the jury be charged as matter of law that “ If the jury cannot make up their minds as to whom to believe, the plaintiff has failed to make out his case and defendants are entitled to a verdict.” To which the court said: “ I charge so because it is by a preponderance of the credible evidence that the plaintiff- should prevail.” This was not the law of the case. He that affirms of another an unlawful act is bound to affirmative proof of that which makes the act unlawful. Wore the oral evidence eliminated by disbelief of both the plaintiff and the defendants the verdict would needs have been for the plaintiff upon his *prima facie*case. After attention had been called to error by the plaintiff’s counsel saying: “We except to that because in a defense of usury the burden of proof is upon the defendant; ” the justice further observed: “ The validity of the note is presumed, but that is subject to rebuttal, and when the rebuttal testimony is put in then the burden shifts again on the maker of the note, and he must establish that by a fair preponderance of the evidence.” This not unfamiliar phrasing, arising from use of “ burden,” with diverse meanings, did not remedy the charge. “ The presumption is, of course, that * * * the law was not violated.” Morrison v. Verdenal, 5 N. Y. Supp. 607. The charge made on request of the defendants still standing, the expression about a shifting of the burden might be taken to imply possible relief of the defendants from their burden of satisfying the jury affirmatively of the truth of their allegation that the plaintiff took interest exceeding the legal rate and with corrupt intent, a burden subsisting to the end. Stewart v. Drake, 46 N. Y. 455; Stillman v. Northrup, 109 id. 478. The judgment should be reversed.

Scott and Dugeo, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.