Giventer v. Arnow

¶1I concur in the result on the authority of Madison Personal Loan v. Parker (124 F. 2d 143) and the statement in 32 Few York Jurisprudence, Interest and Usury (§ 56).

¶2In Madison, the Second Circuit Court of Appeals in 1941 was concerned with the Small Loan Act of Few York (Banking Law, art. 9, § 340 et seq.), not applicable here. Section 352 of the Banking Law then provided and still provides, in part, that interest shall not be compounded and that, if any interest in excess of that permitted in said article is charged or contracted for,* the contract of loan shall be void and the licensee shall have no right to collect or receive any principal, interest or charges *162whatsoever. In discussing New York cases decided prior to the Small Loan Act, the Circuit Court said (p. 145): “ True, the illegality of compounding in New York was not usurious, but only contrary to public policy, Stewart v. Petree [55 N. Y. 621] ; and thus the penalty was refusal to allow recovery of the additional interest, Young v. Hill [67 N. Y. 162], not avoidance of the entire obligation under the general usury statute.” Accordingly, there being no exception here to the general rule applicable, such as was the situation involving the Small Loan Act in Madison, the law provides for the penalty of refusal of recovery of the additional interest and not avoidance of the entire obligation.