Smith, J.: Tbe evidence, although conflicting, authorized tbe jury to find that tbe plaintiff was induced to pay tbe defendant $120 to carry tbe bond and mortgage for a year by tbe representation of tbe defendant that be owned tbe bond and mortgage, and that such representation was untrue. Tbe intendment from their verdict is that they so found. Upon tbis state of facts, tbe only question on tbe merits is whether tbe plaintiff was misled to bis injury. That *570be was damnified seems clear. Had tbe defendant been tbe owner of tbe bond and mortgage, tbe plaintiff could have insisted, in equity, that tbe $120 should be regarded as a payment upon them, tbe agreement for forbearance being usurious. (Crane v. Hubbell, 7 Paige, 413; Judd v. Seaver, 8 id., 548.) Tbe $100 which tbe defendant paid to Griswold for tbe same purpose was so applied, it baying been treated as a payment for tbe plaintiff's benefit; but as to tbe remaining twenty dollars, no such application was or could be made, it not baying been paid to tbe true owner of tbe bond and mortgage. To tbe amount of tbe twenty dollars tbe plaintiff was damnified, and has a right of action; and tbe verdict being for that amount of damages only, with interest, is not excessive as claimed by tbe appellant.
Tbe defendant's offer to prove tbe assignment and schedule in bankruptcy was properly excluded, for tbe reason that tbe answer did not set up that tbe plaintiff bad transferred tbe claim in suit. Such transfer, to have been available as a defense, should have been pleaded as new matter. Proof of it was not admissible under a general denial; nor was it admissible under tbe second count in tbe answer, which averred a mere legal conclusion, to wit, that tbe plaintiff was not tbe proper party in interest in tbe action, and bad no right to prosecute tbe same. Tbe issuable facts should have been alleged. (Russell v. Clapp, 7 Barb., 482; Seeley v. Engell, 17 id., 530, reversed, but not on this point, 13 N. Y., 542; Fosdick v. Groff, 22 How., 158.)
Tbe refusal of tbe court below to allow an amendment of tbe answer (even if tbe court bad power to allow an amendment on appeal from a Justice's Court, a point which it is not necessary to decide) was matter of discretion, and cannot be reviewed on appeal.
Tbe point that tbe action cannot be maintained because it' was not brought within a year after tbe money was paid is not well taken. Tbe action is not to recover money paid upon a usurious agreement, but to recover damages sustained by means of tbe alleged misrepresentation.
Tbe order should be affirmed.
MulliN, P. J., and Talcott, J., concurred. Order affirmed.