Opinion
Argued June 1, 1891
Decided June 23, 1891
Ira Shafer for appellant.
Joseph Fettretch for respondent.
On the trial the plaintiff, for the purpose of establishing a cause of action, introduced in evidence the agreement of the defendant to return the five thousand dollars paid to him in the event that the resolution therein referred to should not be passed and take effect before the tenth of July following, a record of the proceedings of the board of aldermen and board of councilmen; and a veto message by the mayor showing that the resolution did not take effect before July tenth, together with proof that a demand for a return of the money was made prior to the commencement of the action, and rested. Thereupon the defendant made a motion to dismiss the complaint assigning, among others, the following grounds:
(1) A valid trust has not been established; (2) The contract is void because on its face it appears that its purpose was to improperly influence legislation.
It appears from the agreement that Jones, at the time of its execution, received from Milbank five thousand dollars which, on the happening of a certain event, he agreed to return. It did not provide that Jones should pay to Milbank five thousand dollars, but that "the said money (the receipt of which had been acknowledged), to be returned to said Milbank in case the resolution shall not be passed and take effect before the tenth of July next."
Clearly such a transaction contains every element essential to the creation of a valid trust. ( Day v. Roth, 18 N.Y. 448 -453.)
It is the tendency of judicial decision to discountenance all attempts to influence the deliberations and determinations of public bodies and officers other than by arguments which, being openly made, bear directly upon the merits of a pending measure or application, because in contravention of a sound public policy. A contract founded on a violation of this wholesome rule of law is illegal, and the court will not lend its aid to a party seeking its enforcement, but will declare the contract void, leaving the parties to it in the position in which they placed themselves. ( Mills v. Mills, 40 N.Y. 546.)
The defendant in his motion for a dismissal of the complaint invoked this rule of law, but the situation then presented, as we think, did not support his position. It did not appear that Jones was an alderman, a councilman or mayor. There was no evidence relating to the contract or the object sought to be accomplished by it outside of the instrument itself, and it does not appear from an examination of its provisions that it comes within the condemnation of the law because against public policy. It did not provide that Jones should assist in procuring the passage of the resolution therein referred to, or that he should render any services whatever. It purports to make Jones the depository merely of the money to be by him returned in the event that the resolution should fail to pass and take effect before July tenth. The court, therefore, rightly denied the defendant's motion to dismiss the complaint, who at once entered on the introduction of testimony tending to show that the contract was against public policy. Plaintiff's counsel seasonably objected that it was immaterial, incompetent and not admissible under the answer, because not pleaded. The objection was overruled, and the exception taken thereto presents the question assigned for error by the appellant. The answer was a general denial, and the plaintiff insisted on the trial, as he does on this appeal, that not having been informed by the answer that the illegality of the contract would be an issue on the trial, he could not be expected to be prepared nor required to meet it. Under a general denial the rule undoubtedly is that if the illegality appears on the face of the complaint, or necessarily appears from plaintiff's evidence, advantage may be taken of it by defendant, who must also be permitted to controvert by evidence everything which the plaintiff is bound, in the first instance to prove, in order to make out his cause of action. And the cases cited by the respondent in support of the ruling will be found on analysis to come within it.
In Russell v. Burton (66 Barb. 539) the contract, as proved by the plaintiff, was for lobby services, and void.
In Oscanyan v. Arms Co. ( 103 U.S. 261), the complaint was dismissed on the opening of plaintiff's counsel because it appeared therefrom that the contract relied on was illegal.
In Cary v. Western Union Telegraph Co. (20 Abbott [N.C.] 333), the plaintiff, in making proof of his contract, introduced evidence showing its invalidity.
And in O'Brien v. McCann ( 58 N.Y. 376); Clifford v. Dam (81 id. 52) and Griffin v. L.I.R.R. Co. (101 id. 348), the court simply declared the rule that, under a general denial, the defendant may give evidence tending to disprove any fact which the plaintiff is bound to prove in order to recover. But in this case it neither appeared from the complaint or the evidence presented by the plaintiff that the contract was illegal, and as we have already shown when the plaintiff rested the evidence established a cause of action. The general denial put in issue all matters which the plaintiff was bound to prove; nothing more. He was required to prove the contract entered into by defendant which was, on its face, valid. Having accomplished that he could not be compelled to enter into a controversy over matters not appearing in the contract involving the question of its validity or invalidity because he had not been notified by the answer that the defendant proposed to assert his own participation in that which was a violation of law as a shield against the consequences of his agreement.
This rule has been enforced so long that it seems unnecessary to support it at this time by an extended reference to the decisions and we shall, therefore, end the discussion by citing a few of the cases in which the courts of this state have said that a defendant, in order to avail himself of facts not appearing on the face of a contract to establish its invalidity, must plead it. ( Dingeldein v. Third Ave. R.R. Co., 37 N.Y. 575; Goodwin v. Mass. Mut. Life Ins. Co., 73 id. 480; May v. Burras, 13 Abbott [N.C.] 384; Haywood v. Jones, 10 Hun, 500; Schreyer v. Mayor, etc., 7 J. S. 1; Vischer v. Bagg, 21 Weekly Digest, 399; Honegger v. Wettstein, 94 N.Y. 252. )
The judgment should be reversed.
All concur.
Judgment reversed.