Opinion
March 8, 1907.
Henry A. Scheuerman, for the appellant.
Thomas D. Adams, for the respondent.
On the 11th day of September, 1902, between five and six o'clock in the morning, the plaintiff was a passenger on one of the defendant's south-bound Third avenue cars. He took the car at Forty-second street and as it approached Twenty-sixth street he testified he indicated to the conductor a desire to get off at that point; that, in obedience to the information thus imparted, the car was brought to a standstill at Twenty-sixth street, and while he was in the act of getting off it was suddenly started, he was thrown to the street, and one of the wheels of the car ran over his foot, cutting off three toes; that he was taken to the hospital, where he remained between five and six months, and thereafter was compelled for a period of some eight or nine months to use crutches; that from that time down to the time of the trial he had been unable to render the service which he did immediately prior to the accident. And in addition to the injuries complained of, he alleged by way of special damage that, prior to the accident, he was earning, in his occupation, seventy dollars a week, and which sum, by reason of his injuries, he had been unable to earn from the time of the accident to the time of the trial.
At the trial the plaintiff was permitted to prove, against the objection and exception of defendant, that immediately prior to the accident he was employed by a bookmaker at a salary of seventy dollars a week, and his duties consisted in placing bets on horse races, which work necessitated activity upon his part and at times he had to run from one bookmaker to another to ascertain the rates upon the horses, and to place the bets. In submitting the case to the jury, the learned trial justice was requested to charge that the jury could not take into consideration, for the purpose of fixing damages, the amount claimed to have been earned by the plaintiff while working for the bookmaker, inasmuch as that work was in violation of section 351 of the Penal Code, which prohibits gambling, betting, etc. The request was refused and an exception taken.
I am of the opinion there was sufficient evidence to go to the jury upon the question of defendant's negligence, as well as the contributory negligence of the plaintiff, but that the court erred in refusing to instruct the jury as requested by defendant's counsel that it could not consider, as fixing the amount of damage, the wages paid by the bookmaker to the plaintiff in placing bets. The plaintiff according to his own testimony was violating the law, and when a person is committing a crime he cannot use the wages paid to him for doing it as the basis for a recovery in a civil action. ( Riggs v. Palmer, 115 N.Y. 506.) No one would contend that if a pick-pocket should have his hands cut off by the negligence of another that the amount which he realized in that pursuit prior to the injury could be used as the basis of damage, nor would any one contend that a burglar if injured by the negligent act of another, which prevented his following his criminal career, could use the amount which he had theretofore realized as the basis of a recovery, and yet in either instance they might just as well be resorted to as the evidence admitted in the case before us. In each case the person would be engaged in doing acts which the statute prohibits, and while they would be of different degrees they would be criminal nevertheless. What a person earns in committing a crime can never be used as the basis of a recovery for an illegal act inflicted by another. The law does not permit proof of its violation for the purpose of enriching the pockets of the violator.
It follows, therefore, that the exception to the refusal to charge as requested was well taken and the judgment and order appealed from must be reversed and a new trial ordered, with costs to appellant to abide event.
PATTERSON, P.J., INGRAHAM, CLARKE and SCOTT, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.