Frank H. Wilmarth, Respondent, v. Jeane Heine, Appellant

Frank H. Wilmarth, Respondent, v. Jeane Heine, Appellant. Third Department, March 9, 1910. Appeal — judgment by court without jury — usury—conversion— assignment of wages—transaction to conceal usurious loan. ' On appeal from a judgment entered upon a decision of the court sitting without á jury, questions of law or fact may be reviewed, although no exceptions to the decision have been filed, provided the case contains a certificate that it contains all the evidence. Where the defendant applied to a money lender for a loan, and the broker - _advancéd §125 on condition that defendant should repay $190 at the rate of $20 each month to be deducted from his wages, which he assigned to the broker, the transaction constitutes a usurious loan, and not abona fide sale of the wages. The defendant, who collected the wages as agent for the broker, is not liable in conversion for failing to pay them over. Appeal by the defendant, Jeane Heine, from k judgment of the County Court of Fulton county in-favor of the plaintiff, entered in the office of the clerk of said county on the 19th day of February, 1909, upon the decision of the court rendered after a trial before the court without a jury. This action was brought to recover for the alleged conversion of $170 of wages or salary earned by the defendant. The defense was usury. . The claim of' the plaintiff is based upon a- written assignment dated JSTovember 28, 1905, which recites that the defendant hereby sells, assigns, transfers and sets over to said party of the first part, for the.sum of $190 and other valuable consideration, “ any and all salary, wages, earnings, commissions, accounts, incomes, dues, moneys, profits and credits which amount to $90 per month, and become due and payable on the 10th of each month, from Louis Meyers and Son, for the period of five years from the date hereof, or until such time as the sum first written above, together with attorney’s fees, costs and disbursements hereinafter provided for, has been paid in full. Said party of the first part has made and delivered to said party of the second part written authority to collect the said salary, wages, earnings, commissions, accounts, incomes, dues, moneys, profits and credits when the same shall become due from Louis Meyers and Son, said second party’s employer, or other debtor, the conditions of said written authority being that said party of the second part shall turn over to said party of the first part his heirs, executors, administrators and assigns, the amount designated in said written authority, on pay day or pay days, or income days until the amount first written above has been paid in full.” The agreement .also provided that on failure of the second party to turn the moneys over to first party, the party of the first part shall collect all of said salary, wages and credits of second party from said employers or other debtors “ until the total amount collected and retained by said party of the first part shall amount to $190 together with an attorney’s fee of $40 and all costs and disbursements incurred in making such collection, as liquidated damages.” At the same time the plaintiff executed an instrument which provided that “Jeane Heine is hereby authorized to collect from Louis Meyers & Son and any subsequent employer such sum of money as is due the said Jeane Heine on the next pay day and settlement, to wit on Dec. 10th, 1905, after date hereof, and on all subsequent pay days or income days, and until the terms of a certain contract and sale hereinafter referred to have been fulfilled, as salary, wages, earnings, commissions, accounts, rents, dues, moneys, profits and credits, and any, all or either of them, and to pay over and convey said sum of money in full immediately and on the same day of its receipt by him to the undersigned, or his designated agent, at his office in Parklmrst Block according to the terms of a certain contract and sale of even date herewith.” The plaintiff was a money lender or broker. The defendant was in the employ of Louis Meyers & Son and was earning from $60 to $90 per month. The plaintiff testified that at the time the defendant applied to him fof a loan, “I said yon have no security'tó give me except your wages. You are liable to get sick, go blind, get crazy or lose a hand or foot and not be able to work, therefore I have got a big risk.” He also testified.that he told the defendant that if they could make a satisfactory arrangement he would buy his wages; that he bought $190 worth of wages and paid $125 for them; that by the terras of the agreement lie was to pay $20 a month out of the wages; “ that is what I agreed to talce, I agreed if he would give . me $20 a month, the matter would run along Until it was paid. He was to bring-the whole of the wages arid deliver them to me and I was to- take $20 and give the wages back to him.” It was conceded that between December 10, 1905, and May 10, 1906, the defendant' Collected $323.20 wages earned by him during that time, arid of that sum he only paid the plain till $20.. ■ George 11. Witherhead^ for the appellant. W. II. Aníbal, for-the respondent. [MAJORITY — Sewell, J.:] Sewell, J.: The first question presented upon this appeal is one relating to practice. The respondent claims that wc have no power to review any question of law or fact, as it appears that no exceptions have been filed to the decision of the court. The. question of the necessity for exceptions where, as in this case, there is a certificate showing that it contains all the evidence, was presented in Hill v. White (46 App. Div. 360). In discussing, the question in that case we said: “ By section 992 of the Code exceptions to findings of fact in actions tried by the court are forbidden, and questions of fact in a. case like the present may be reviewed upon appeal without exceptions, provided that the case contains á certificate that' it contains all the evidence.” " ' - The other question presented is whether there was a bona fide sale of the defendant’s wages or a device to cover a usurious loan. I think it is plain from the facts appearing in the record that the transaction was not an actual sale but a scheme by means of .which the most, flagrant extortion was intended to be practiced by the plaintiff upon the defendant. The written instruments taken in connection with the history of the transaction, as testified to by the plaintiff, show a device contrived for the purpose of concealing a loan and enabling him to exact a greater profit than six per cent for the use.of his money. The defendant made an application to the plaintiff for a' loan of money. He had no security to give except his wages, and the plaintiff advanced the amount 'applied for upon the condition that the defendant should repay it, and sixty-five dollars in addition, out of the monéys to be received by him for services rendered. In this, as in every other case where the question of usury is- raised, the transaction must be judged by its real, character rather than by the form and color which the parties have seen fit to give it. There can be no doubt from all the facts and circumstances of this case that the substance and effect of the transaction was not a bona, fide sale of wages but a borrowing on the one side and a lending on the other at a greater rate of interest than that allowed by law. My conclusion, therefore, "is that the defendant was not liable for con-' version upon failing to pay over the moneys to the plaintiff and that the judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred, except Chester, J., not voting, not being a member of the court when the decision was handed down. Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.