Selover agt. Forbes. WELLES, Justice. The motion is to set aside the summons for irregularity, without indicating in any manner in the notice, in what the alleged irregularity consists. After reading the moving papers, I was at a loss to conjecture the irregularity complained of, until I examined the points and brief of the moving counsel. The plaintiff's counsel in his points takes this objection, and insists that rule 25 be applied, which was intended for precisely such a case. There is no good reason why the rule should not be enforced. If the merits were involved in the least in the motion, it would be denied without prejudice. But they are not, and the motion is denied generally for the reason that the irregularity alleged is not specified in the notice, with $7 costs. SUPREME COURT. SELOVER, receiver, &c. agt. FORBES. A motion founded on irregularity of any proceedings, cannot be made where the irregularity complained of is not specified in the notice. (See to the same effect the case of Perkins agt. Mead, p. 476.) Stringent terms imposed on the defendant on opening the judgment by default against him, where his best excuse was that both he and his attorney neglected to attend to the case. New York Special Term, October, 1859. MOTION by defendant to open judgment by default, and to be allowed to come in and defend. INGRAHAM, Justice. This motion cannot be made for any irregularity even if there were such a ground, because the irregularity complained of is not stated in the notice. The only question therefore is, whether the defendant has shown any good cause for opening the judgment. At best the excuse is that both he and his attorney neglected to attend to the case, the one because the receiver East River Bank agt. Hoyt. had, through a trick practiced upon him, been induced to discontinue the action, which discontinuance was afterwards set aside, and the other because he did not know where his client was to be found. Under ordinary circumstances such excuses ought to be of no avail, but as this action is brought by a receiver who has no knowledge of the validity of the claim, except that which is obtained from others, and as the defendant denies positively any indebtedness whatever, I have with much hesitation come to the conclusion to allow the defendant a trial upon the following terms, viz: The judgment and execution to stand as security, and the sheriff to be allowed to proceed on the execution unless the defendant secures him thereon, the defendant to withdraw his appeal from the order of Judge CLERKE, and to pay all costs of the reference and of the subsequent proceedings, and $10 costs of this motion. If these conditions are not complied with in ten days from service of notice of this order, the same is denied. SUPREME COURT. THE EAST RIVER BANK agt. ANSON B. HOYT and others. Where a bank, as a condition of the discount of a promissory note, requires that the party shall have another note discounted having the same time to run, and shall leave the proceeds of the latter note in the bank to the credit of the party until the notes become due, and requires the deposit of a check of the party on this money bearing date the day the note will be payable, it is a clear case of usury. Although it is settled that a new trial will not be granted in actions for penalties on the ground that the verdict is against the weight of evidence, where the verdict is for the defendant; yet there is no such rule or decision where the verdict is in favor of the plaintiff. Where a new trial is granted on the ground of the verdict being against evidence, the same can only be on payment of costs of the last trial. New York General Term, March, 1862. East River Bank agt. Hoyt. By the court, INGRAHAM, P. Justice. A motion was made before me for a new trial in this case, founded on the minutes of testimony. Upon the trial it was proven by witnesses that when the note on which the suit was brought was discounted by the bank, it was required as a condition of the discount, that the parties should have another note discounted having the same time to run, and should leave the proceeds of the latter note in the bank until the notes became due. The precedent cited required the party to whom the discount was credited, to give a check on this money bearing date the day the note would be payable. This was so clearly an attempt to obtain more than seven per cent. on a loan of money, and so clearly usurious, that I am at a loss to see how the jury could come to a contrary conclusion. Indeed, it was admitted by the president of the bank that he told the parties that he could not afford to discount notes at seven per cent. It is true that he also stated that the money was placed to the credit of the borrower on the books of the bank, and he supposed he might have drawn it on his checks if he had insisted on doing so. It is hard to suppose, however, that any such intention existed on the part of the officers of the bank in opposition to all the other evidence in the case, especially where it appeared that the last note was taken without any responsible indorsement. On the contrary, it is apparent from the whole transaction that the intent of the officers of the bank was to compel the debtor to pay double interest for the money which the borrower actually received from the bank. The note therefore was void for usury. Under such circumstances, the verdict should be set aside as against the evidence, and a new trial ordered, unless the decisions of the court prevent a new trial on such a question. In Rice agt. Welling, (5 Wend., 595,) the court held that where the question admitted of any doubt they would not East River Bank agt. Hoyt. interfere with the verdict as against the weight of evidence. In Mansfield agt. Wheeler, (23 Wend., 79,) the judge says: "The case was open to some observation on the question whether the usurious contract extended to the original loan," and on that account the court refused to grant a new trial. In the Overseers of the Poor agt. Lunt, (15 Wend., 565,) the court expressly held that a new trial would not be granted in a penal action merely because the verdict is against the evidence. In that case, however, the verdict was for the defendant, and the court likened it to criminal proceedings where the accused was acquitted. And in Wheeler agt. Calkins, (17 How. Pr. R., 451,) the same rule is stated, but its operation is limited to cases where the verdict is for the defendant. (See numerous cases cited in the opinion in that case.) But I have been referred to no case where the motion has been denied in such cases when the verdict was for the plaintiff. On the contrary, all the cases seem to draw a distinction between a verdict for the plaintiffs and for the defendant, and holding that where the defendant has had a verdict in his favor in actions for penalties, the court will not expose him to a second trial on this ground. The verdict in the present case is so clearly against the weight of evidence, that I think the defendants are entitled to a new trial. Where a new trial is granted on the ground of the verdict being against evidence, the same can only be on payment of costs of the last trial. New trial granted on payment of costs. Van Ness agt. Bush. SUPREME COURT. HENRY VAN NESS, appellant agt. PETER G. BUSH, resp❜dt. A referee on the trial has power to allow an amendment of a pleading under § 173 of the Code.* The terms of an amendment are within the discretion of the court, and the exercise of that discretion is not the subject of review upon exceptions or appeal. The declarations of a witness, whose testimony has been taken on commission, made subsequent to the execution of the commission, contradicting or invalidating his testimony, cannot be given in evidence, unless the witness has been examined upon the point and an opportunity given him to explain. It is an essential element of an estoppel in pais that the declaration out of which it is claimed to arise, should be made with a view to induce the party to whom it is made to act upon it. The finding of a referee on questions of fact upon which there is conflicting evidence, is conclusive. Argued at Schenectady General Term, January, 1860. Decided at Plattsburgh General Term, May, 1860. STATEMENT of facts by appellant: 1st. This action is founded upon a promissory note of $200, made by defendant, and payable to Issac Bush, or order, ninety days after date, at the Fort Plain Bank, for value received, and dated July 17, 1852. The note was indorsed by Isaac Bush, and This is directly in conflict with the following authorities, to wit: Union Bank agt. Mott, (18 How., 506,) ALLEN, J., where the precise point was adjudicated; S. C. 19 How., 114, where the same motion to amend which was decided by the referee, and the order set aside by ALLEN, J., for want of power, was brought before the court, JAMES, J., who decided to grant the motion to amend-being a proper amendment for the court to allow. An appeal to the N. Y. general term, (INGRAHAM, MULLIN and E. DARWIN SMITH, Justices,) was subsequently taken from the decision of JAMES, J., on the whole case, and an opinion of the court was given by SMITH, J., (S. C. 19 How., 267,) reversing in part the decision of JAMES, J., on another point, but expressly affirming the opinion of ALLEN, J., on the point in question. Woodruff agt. Hurson, (32 Barb., 557,) where the point was again expressly decided by the N. Y. general term, SUTHERLAND, BONNEY and ALLEN, Justices. See also the opinion of GRAY, J., in Everett agt. Vendryes, (19 N. Y. R., 436,) where it was held that the court could not properly amend the pleadings at the trial (§ 173) where such amendment would introduce a wholly new defence in no way suggested by the original answer. This latter view is sustained by the case of Catlin agt. Hansen, (1 Duer, 309,) and Fagan agt. Davidson, (2 Duer, 158.)-REP. |