day after the loan was made, and thereafter collected interest on the full amount. Moreover, it did not appear that the borrower, or her agent, knew that the principal's son was to retain the $160 for his own benefit. In Braine v. Rosswog, 13 App. Div. 249, 42 N. Y. Supp. 1098, a father and his daughter lived together, and the daughter signed checks on a bank for money deposited in her name, which the father loaned at usurious rates, the daughter sharing in the profits, and it was held that an action to cancel the usurious security could be maintained. The principal in each of these cases derived a benefit from the transaction. The rule is broadly stated in 39 Cyc. p. 975, as follows:

"When the agent making loans on behalf of his principal is vested with general powers as broad as those the principal might exercise if present in his own person, the principal will be held responsible for all acts done by such an agent, and a usurious commission taken by the agent, although without real knowledge of the principal, will affect the whole transaction with usury."

Bliss v. Sherrill, 24 App. Div. 280, 49 N. Y. Supp. 561, is the only New York case cited as authority. There a husband, empowered by his wife to loan money on her account, negotiated through certain brokers a loan of $50,000, secured by a bond and mortgage, executed in favor of the wife by the borrower, who at the same time agreed to pay a bonus of $10,000, half of which was to go to the brokers and the remainder to the husband, and this remainder was in fact deposited by him in the name of his wife, and was stated by him to represent a payment upon an indebtedness of $54,000, owing by him to her, from which account a considerable part of the money advanced upon the mortgage had been drawn, and it was held that the wife could not plead ignorance of the usurious character of the loan. In the trial court the judgment was for plaintiff, and the Appellate Division reversed. The second trial also resulted in a judgment for plaintiff, which, however, was affirmed by the Appellate Division. Bliss v. Sherrill, 52 App. Div. 613, 64 N. Y. Supp. 809. On the second trial, husband and wife both testified that the latter did not have any knowledge of the transaction. And while the court, on the second appeal, stated that it adhered to the opinion expressed on the first appeal, the result was practically a reversal.

In Phillips v. Mackellar, supra, where an agent, upon lending the money of his principal, exacted a bonus, without his authority, knowledge, or consent, and the principal received the sum so paid, it was held that usury was not established, unless it was shown that the money was paid as a usurious consideration for the loan. And in Stillman v. Northrup, supra, it was held that it is not sufficient to show that a loan was made by an agent of the lender and that such agent exacted and received, for his own benefit, a sum of money over and above legal interest, as a condition of the loan, but that it is necessary to show that he took it with the knowledge and assent of the latter. And it was also held that the defense, involving crime and forfeiture, cannot be established by surmise and conjecture or by inferences entirely uncertain. It seems clear, therefore, that the defense cannot be established by implication, and that the statement in Cyc. is too broad.

152 N.Y.S.-37

[9, 10] It is claimed, finally, that the guaranty of payment by Wiswall and Scott required inquiry on the part of Mrs. McLean. A person may sell his credit to another, by guaranteeing the obligation of that other, and may take whatever price he may obtain for the service thus rendered. 39 Cyc. p. 940. But if it appears, from all the circumstances, that the parties intended a usurious loan, the transaction will be held unlawful. Palmer v. Jones, 69 Hun, 240, 23 N. Y. Supp. 584. At the time that the mortgage was given, Mrs. Jones was the owner of an apartment house in the city of Brooklyn, which was subject to a mortgage of $170,000. She was in default on this, and foreclosure had been threatened. Her other real property had all been mortgaged to such an extent that none of it was available for a further loan, except the farm in question. One piece, in Saratoga county, was subject to a mortgage of $7,000, which was held by the Adirondack Trust Company and had been guaranteed by Wiswall. Another piece, the Kilmer farm, in said county, was subject to a mortgage of $5,300, which was held by Mrs. McLean and had been guaranteed by Wiswall and Scott, and upon which Mrs. Jones had defaulted, or was in default. And the third piece, the farm in question, was subject to a mortgage of $1,000, upon which the sum of $500 remained due. In addition, she had some stock, farming implements, and personal property, fairly worth the sum of $2,500. Her personal property, so far as appears, was clear. Jones, at one time a real estate dealer in New York City, says that the farm in question was fairly worth $3,500, but Wiswall says that it was worth not more than $2,000. Jones claims that he applied for $3,800, and offered the farm alone as security. He claims, further, that the personal property was not spoken about, until Wiswall stated that the farm was not sufficient as security. At the outset, he testified that the chattel mortgage proposition came from himself, then that Wiswall required it.

That a real estate dealer would expect to get $3,800 on a farm worth $3,500 and already subject to a mortgage, upon which the sum of $500 remained due, seems unlikely. Wiswall testified that the amount asked for was $2,000. The equity in the farm, according to his estimate, being $1,500, and the personal property being fairly worth $2,500, the security would be $4,000 for a requirement of $2,000, plus the $1,000 agreed to be paid to Wiswall. This left a margin of $1,000. Wiswall claims that he told Jones that it would be necessary for him to guarantee the mortgage, just as he had before. Jones claims that nothing was said about a guaranty. But Jones knew that Wiswall and Scott had theretofore guaranteed the mortgage upon the Kilmer farm, and that Wiswall had guaranteed the Adirondack Trust Company mortgage, so that it is probable that Wiswall told him that it would be necessary to guarantee this one.

The security offered was a second mortgage on a farm, the equity in which was about $1,500, and a chattel mortgage on personal property worth about $2,500. The margin between the amount advanced and the estimated value of the security was only $1,000. The security was doubtful. In this connection it may be noted that it has been

greatly impaired by the sale of $250 worth of standing timber and nearly all of the personal property, so that it is probable that the guarantors will be required to make up a deficiency. The guarantee recites that the consideration for it came from Mrs. McLean. It may be that she consented to make the loan on the condition that Scott should guarantee it and that Scott associated Wiswall with himself in the guaranty. Whether Mrs. McLean paid for it or not does not appear. If she did not, the burden of proving the fact was on Mrs. Jones. Plaintiff, therefore, is entitled to judgment.

By the agreement of March 20, 1912, made after the commencement of the action, by which the time for the payment of the principal and interest of the mortgage was extended to December 1, 1912, Mr. and Mrs. Joncs agreed that the sum of $2,920.84, principal and interest, was then due. The agreement recited the payment by Mr. and Mrs. Jones of the sum of $75 to apply on plaintiff's costs, and provided that, if the balance of principal, interest, and costs should be paid on or before December 1, 1912, the action should be discontinued without further costs. The sum of $75 was figured as upon a settlement before judgment and was to apply on the costs, if there should be no settlement. The mortgage was not paid on December 1, 1912. So that plaintiff is entitled only to the balance of the costs. Findings may be prepared accordingly.

KAMMAN v. KAMMAN. (No. 169/139.)

(Supreme Court, Appellate Division, Fourth Department. March 26, 1915.)

1. APPEAL AND ERROR 907-REVIEW-FINDINGS.

Where the evidence was not returned with the appeal, it must be assumed that findings of fact by the trial court were correct.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911, 2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. 907.]

2. DIVORCE 231-ALLOWANCE-REFUSAL OF SEPARATE MAINTENANCE-OB

DERS.

Under Code Civ. Proc. § 1766, providing that the court may, in an action for separation, render judgment compelling the defendant to make provision for his wife, it is improper, where the evidence does not warrant separation, for the judgment to make provision for the wife.

[Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 658-661, 664; Dec. Dig. 231.]

The award of fees to counsel representing the wife in a divorce suit is peculiarly a question for the trial judge.

[Ed. Note. For other cases, see Divorce, Cent. Dig. § 645; Dec. Dig. 223.]

4. DIVORCE 228—ACTIONS—ATTORNEY'S FEES.

In a suit by a wife for divorce, an order for additional attorney's fees should provide for payment to the wife, instead of her designated attorney. [Ed. Note. For other cases, see Divorce, Cent. Dig. § 655; Dec. Dig. 228.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Special Term, Erie County.

Action by Cora A. Kamman against John A. Kamman. From a judgment (151 N. Y. Supp. 226) providing for separate maintenance and attorney's fees, defendant appeals. Modified and affirmed.

See, also, 151 N. Y. Supp. 1123.

Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.

August Becker and J. Ralph Ulsh, both of Buffalo, for appellant. Bartlett & Chamberlain, of Buffalo, for respondent.

PER CURIAM. Each party charges the other with misconduct. The trial court finds that both parties are at fault and dismisses the complaint. The plaintiff contends that defendant's conduct has been. such as to make it unsafe and improper for her to cohabit with her husband, while the defendant denies these charges and alleges by way of counterclaim that his wife committed adultery and asks that the marriage relation be dissolved.

[1] The evidence has not been returned. We must therefore assume that the findings of fact are correct, and, if so, the complaint was properly dismissed. Neither party by appeal challenges the correctness of this disposition, except that the defendant contends that the provision in the judgment, that the dismissal of the complaint "shall not in any manner relieve the defendant from his obligations to support and maintain the plaintiff in a manner corresponding to his means and station in life," should not have been incorporated in the judgment, and he appeals from that provision.

[2] While section 1766 of the Code of Civil Procedure provides that the court may, in an action for separation, render a judgment compelling the defendant to make provision for the support of his wife, where, under the circumstances of the case, such a judgment is proper without rendering a judgment of separation, the Court of Appeals seems to have held (Davis v. Davis, 75 N. Y. 221; Ramsden v. Ramsden, 91 N. Y. 281), as is pointed out in the opinion of the learned trial justice, that this provision applies only where a separation can be decreed upon the evidence; and it has been held in this case that the evidence was insufficient to make such a decree. If that is so, it would seem that this provision should not have been incorporated in the judg

ment.

Another action has been brought by the plaintiff for separation since the dismissal of the complaint in this action, in which she complains of misconduct on the part of her husband occurring since the dismissal of this suit. What effect the findings and judgment of dismissal in this action may have upon the second suit can better be determined on the trial of the second action, when all the facts and circumstances are before the court. We are of the opinion that this provision should be stricken from the judgment.

[3, 4] As to the order directing additional counsel fee of $750, we think that order, as well as the order correcting the clerical mistake of the clerk, was authorized and proper, except that the order for additional counsel fee should not have directed the payment thereof to a

specified attorney for the plaintiff, but to the plaintiff herself. The amount of the allowance was a question which was peculiarly for the judge before whom the action was being tried and who was familiar with all the circumstances. We cannot say that the allowance was excessive.

The judgment should be modified, by striking out that part thereof from which the appeal is taken; the order granting additional counsel fee should be modified, so as to require the payment to be made to the plaintiff, instead of to her designated attorney; and the order correcting date of the order should be affirmed-all without costs.

KAMMAN v. KAMMAN. (No. 170/140.)

(Supreme Court, Appellate Division, Fourth Department. March 26, 1915.)

1. DIVORCE 212, 224-TEMPORARY ALLOWANCES.

Where the facts as claimed by plaintiff wife would warrant separate maintenance, it is proper, where she is destitute, for the court to order the payment of alimony pendente lite and attorney's fees.

[Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 614-618, 646; Dec. Dig. 212, 224.]

An order awarding fees to counsel representing the wife in a suit for separate maintenance should provide for payment to the wife.

[Ed. Note. For other cases, see Divorce, Cent. Dig. § 655; Dec. Dig. 228.]

Appeal from Special Term, Erie County.

Action by Cora A. Kamman against John H. Kamman. From an order providing for payment of attorney's fees and alimony pendente lite, plaintiff appeals. Modified and affirmed.

Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.

August Becker and J. Ralph Ulsh, both of Buffalo, for appellant. James O. Moore, of Buffalo, for respondent.

PER CURIAM. The plaintiff in this action alleges that since about the 2d of January, 1915, the defendant without any just cause or reason therefor has abandoned and refused to live and cohabit with the plaintiff as his wife and refuses to make any provision for her support and maintenance; that he has left her entirely destitute and refuses to resume and continue his marital obligations with her. The affidavits seem to support this allegation of the complaint, but the defendant contends that because the plaintiff left her home and brought a suit for support and maintenance, which was dismissed because both parties were at fault, she is not entitled to return to her husband and resume the marital relation, or maintain this action.

[1] We are not prepared to assent to that view. That contention is based largely upon the decision in Silberstein v. Silberstein, 156 App. Div. 689, 141 N. Y. Supp. 376. We need not now discuss the scope of

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes