majority">Beekman, P. J.

The defendants having alleged that the note in suit was tainted with usury, the burden rested upon them of establishing that fact by a preponderance of evidence. Stillman v. Northrup, 109 N. Y. 473; Baldwin v. Doying, 114 id. 452. As the trial justice has rendered judgment in favor of the plaintiff, *475it must be assumed that wherever there was a conflict of evidence it was resolved in favor of the latter, and the only question before us is whether from that point of view the proofs were of such a character as to support a finding that the defendants had failed to sustain the burden of proof with respect to the defense which was interposed.

We think there was room for such a conclusion. It is true that it was established that the agent for the plaintiff who carried the transaction through did exact the payment to himself of a commission on which the charge of usury is predicated, but there is no proof whatever tending to show that this was authorized by or known to the plaintiff, or that he received any portion of the sum so exacted or was affected with notice of his agent’s unlawful act. The absence of such proof has been held to be fatal to such a defense.

In Stillman v. Northrup, supra, it is said (p. 477): “ To render the note void for usury, it was not sufficient for the defandants merely to show that plaintiff’s agent took and exacted the $50 as a consideration of the loan. But it was incumbent upon them to show that he took the $50 with the knowledge and assent of the plaintiff, so that she, at least, by acquiescence, became a party to the usurious exaction. Condit v. Baldwin, 21 N. Y. 219; Estevez v. Purdy, 66 id. 447; Van Wyck v. Watters, 81 id. 352; Philips v. Mackellar, 92 id. 34. And the burden of establishing such knowledge and acquiescence on the part of the plaintiff rested upon the defendants, and they were bound to sustain that burden by satisfactory evidence. The defense of usury involving crime and forfeiture cannot be established by mere surmise and conjecture, or by inferences entirely uncertain. If, upon the whole case, the evidence is just as consistent with the absence as with the presence of usury, then the party alleging the usury has failed; and so it has been repeatedly held.”

It follows that the judgment must be affirmed.

Gildeksleeve and Giegeeich, JJ., concur.

Judgment affirmed, with costs.

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