Opinion
March, 1929.
Benjamin A. Hartstein, for the plaintiff.
Sherman, Solomon, Ribman Goldring, for the defendant.
The action is one in replevin brought by the plaintiff to recover a coat and other material which were in the possession of the defendant. The defendant in addition to denials, pleaded as a defense that the plaintiff delivered certain merchandise to the defendant to be manufactured into ladies' coats by the defendant for the plaintiff; that the plaintiff refused to pay for the work, labor and services on the coats and that the defendant has a lien on the merchandise and is entitled to possession of the merchandise. The plaintiff in his reply alleges that the agreement alleged in the answer was the result of a secret understanding between the defendant and an agent or employee of the plaintiff and that the defendant gave certain sums of money to plaintiff's employee with the intention of influencing the employee's actions in relation to the plaintiff and that the agreement between defendant and plaintiff's agent was illegal and void under section 439 of the Penal Law and the defendant was barred from asserting any lien for any alleged work, labor and services as set forth in the answer. The allegations of the reply for the purpose of this motion must be deemed to be true, ( Robinson v. Whitaker, 205 A.D. 286.) The law is well settled that a contract made in violation of section 439 of the Penal Law is unenforcible. ( Morgan Munitions Supply Co. v. Studebaker Corporation of America, 226 N.Y. 94; Sirkin v. Fourteenth Street Store, 124 A.D. 384; Segal v. Chemical Importing Manufacturing Co., 205 id. 220; Bolotin v. Jefferson, 98 Misc. 603; Continental Wall Paper Co. v. Voight Sons Co., 212 U.S. 227.)
Motion to dismiss plaintiff's reply denied.