Opinion
February 3, 1941.
Present — Lazansky, P.J., Hagarty, Carswell, Johnston and Taylor, JJ. Settle order on notice.
Action in equity to compel the surrender of certain notes, deeds and other instruments, on the claim that the notes were usurious and that the other instruments were delivered by the plaintiff to respondent Ammerman under duress. Judgment for defendants unanimously affirmed, with costs. Findings of fact are modified by striking out findings 8 and 9 and substituting therefor a finding that the transactions involving the delivery of the notes aggregating $3,490 were not usurious; that such notes were valid subsisting obligations; and that the additional notes delivered represented an evidencing of Ammerman's right to participate in the profits of the prospective stock transaction in the event there were profits, and limited the extent of Ammerman's participation to the face amount of this set of notes; so that the essence of the transaction was that Gerung guaranteed the return to Ammerman of the amount of money actually advanced, with lawful interest, as a consequence of a joint venture with him in the stock transaction, with the right of Ammerman to participate in the profits being limited to the face of the additional set of notes in the event and contingency that there were any profits, and in the event that there were no profits, the second set of notes, as between the immediate parties, were to have no validity.