¶1The order of the General Term, reversing the judgment of the referee, in this case, should be reversed and the judgment of the referee affirmed. This action was brought to recover the value of certain personal property, taken by the defendant from the plaintiff, upon a chattel mortgage, executed by the defendant to the plaintiff, which mortgage, the plaintiff alleges, was usurious and, consequently, *256 the taking of the property upon a void mortgage was unlawful. The referee, before whom the cause was tried, found the mortgage to be usurious, and gave judgment for the plaintiff for the value of the property. The defendant appealed to the General Term, when the judgment of the referee was reversed, and a new trial granted; and from this order of the General Term, granting a new trial, the plaintiff has appealed to this court. As the order of reversal and granting a new trial does not state, that the same was reversed on questions of fact, it must, for the purpose of review here, be deemed to have been reversed, purely upon a question of law. The 272d section of the Code, as amended by chapter 459 of the Laws of 1860, declares that, "If the judgment be reversed, at the General Term, and a new trial ordered, it shall not be deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal; and in that case, the question, whether the judgment should have been reversed, either upon questions of fact or law, shall be open to review in the Court of Appeals. The result of this amendment of section 272, by the act of 1860, is that, where the judgment of the referee is reversed at the General Term, and a new trial granted, and the order of reversal shows it to have been reversed upon questions of fact, it is the duty of this court to examine the facts of the case, as well as the law, and to decide whether the judgment should have been reversed by the General Term, upon the facts. (Peterson v. Rawson, 34 N.Y.R., 270; Beebe v.Mead, 33 N.Y.R., 5, 87.) While, on the other hand, if the order of the General Term fails to show that the judgment was reversed upon questions of fact, it must be assumed to have been reversed upon questions of law alone. (Baldwin, exrs., v. Van Dusen, 37 N.Y.R., 487.) And, in the latter case, nothing but questions of the law can be reviewed in this court. We have nothing in this case for review, but the law of the case, arising upon the exceptions taken upon the trial, and to the report of the referee, on his final decision of the case. We cannot look into the opinion of the learned justice in the *257 Supreme Court, in this case, to see that he went into the evidence and brought out facts, upon which he based his judgment, and which are not to be found in the findings of the referee. This, the 272d section of the Code, as this court has repeatedly held, does not allow us to do. It is claimed and insisted by the respondents' counsel, that the facts, found by the referee, did not justify his conclusions of law, that this transaction was an usurious one. He does not, it is true, state in his findings of fact, that he finds the mortgage usurious. He finds certain facts, and then, in his conclusions of law, finds the mortgage usurious. In his finding of facts, there is one very important element in the case, appearing in the undisputed evidence, entirely omitted, that is, the insolvency of Jones, and this fact, that the defendant had been proceeding against him upon supplementary proceedings, and had failed to collect his judgment. This was quite essential to have been stated in the findings of fact; and if it is to be entirely ignored here, on this appeal, it is certainly questionable, whether the conclusion of usury can be safely drawn from the other evidence in the case. The referee, however, had the whole evidence before him, and, upon the whole evidence, found the question of usury against the defendant. The question, therefore, is presented, whether this court, for the purpose of sustaining the judgment of the referee, can look beyond the law findings of the referee, or whether they will presume that facts were found justifying the finding. This is not an open question in this court.
¶2The mere omission to make a statement of all the facts, which may be considered by this court, as necessary or material to authorize the judgment, affords no ground for a reversal of the judgment. The presumption, in law, is, that the judge did find all the facts necessary to sustain his conclusion of law, although they are omitted to be stated in the settlement of the case. This was expressly decided in this court, in the case ofSmith v. Coe (29 N.Y.R., 666), and it is expressly held, that the appeal alone does not bring up the question, whether all the material facts necessary to sustain the legal *258 conclusion are contained in the findings of the judge or referee. (Smith v. Coe, 29 N.Y.R., 666.) The presumption is, that the judge found all the facts, which are necessary to sustain his conclusion, whether that conclusion is to be regarded, as one of fact or law. (29 N.Y.R., 670.) The only exception to the rule above stated is, where there is no evidence in the case, upon which any fact could have been found to justify the legal conclusion and the judgment. (29 N.Y.R., 670.) The case ofViele v. The Troy and Boston R.R. Company (20 N.Y.R., 184), also sustains the views above expressed.
¶3If we look into the evidence in this case, we shall find abundant evidence, in my judgment, to sustain the judgment of the referee. The plaintiff was in depressed and embarrassed circumstances, and the assuming of this worthless debt, which the defendant held against Jones, and putting the same into this chattel mortgage, was imposed upon the plaintiff, as a condition of the loan, as the referee finds, and as the evidence fully justifies, and the transaction might well have been found usurious, when the lender required the borrower to take this worthless debt against Jones. Such a transaction is presumptively usurious. (2 Cowp. R., 395; 43 Barb. R., 157; 19 Johns. R., 296; 7 Paige R., 559; 34 Barb. R., 157; 2 Peters' U.S.R., 537). But we are not to review the merits of the case, but only to see, if there was any evidence, upon which the conclusion of this referee might be predicated. It follows from the views above expressed, that the judgment of the General Term, reversing the judgment of the referee, cannot be sustained upon the ground, upon which that court placed their judgment. It only remains to consider, whether the referee erred, in excluding the evidence offered in the question put to the witness, Casper Childs. That question was, as follows: "Was Mr. Bell then still acting as agent forValentine?" This question was objected to, as leading, and incompetent, and the objection sustained. The case does not show upon what ground it was excluded.
¶4It may have been excluded upon the ground it was leading, *259 so no error was committed. The most simple test of the rule, in determining whether a question is leading, settles the matter against the respondent. The answer, yes or no, would have furnished a complete answer to the question, and would have been the natural answer to the question. I am not able to perceive, however, the materiality of the evidence. Whether material or not, the question was properly excluded, as leading; and as this distinct ground was taken, the defendants' counsel should have framed this question anew, so as to obviate the objection, and cannot now complain that he has been deprived of this evidence. When a usurious loan has been made, and a chattel mortgage or a transfer of valid securities or other property has been made over to the lender, as security for the payment of the loan, the whole is void, and an action lies, at once, to recover the securities or the property. (Schroeppel v. Corning, 2 Seld. R., 107; 10 Barb. R., 576; 2 Peters' U.S.R., 37.) The case of Smith v.Marvin (27 N.Y.R., 137), decides nothing to the contrary of this. These views lead to the reversal of the judgment of the General Term, and affirmance of the judgment of the referee.
¶5WOODRUFF, MURRAY, and DANIELS, JJ., concurred with GROVER and LOTT, JJ., for affirmance.
¶6HUNT, Ch. J., and JAMES, J., with MASON, J., for reversal.
¶7The order of the General Term affirmed, and judgment absolute ordered for the defendants for costs.