December 28, 1945.
In an action to recover jewelry delivered by plaintiff to defendant, or the value thereof, order denying defendant's motion for summary judgment affirmed in the exercise of discretion, without costs. The determination of the question of legality should await all the proof to be adduced upon the trial.
Defendant is entitled to judgment dismissing the second cause of action. (Rules Civ. Prac., rules 113, 114.) Accepting plaintiff's construction of the allegations of that cause, he agreed to and did provide the means to pay the Portuguese consul about $30,000, merely to obtain visas permitting travel from Bayonne, France, to Portugal. Such an agreement is clearly illegal and contrary to public policy. Illegal agreements may be malum in se or malum prohibitum. The law will neither enforce agreements malum in se nor order restitution of any moneys paid by a party thereunder. In some few cases restitution of moneys paid under agreements malum prohibitum has been ordered where the agreements had not been fully performed or executed. The agreement in suit, being malum in se, is contrary to public policy, and though it be unexecuted, the law will neither enforce its terms nor direct restitution of moneys paid thereunder. ( Pratt v. Short, 79 N.Y. 437, 445; Knowlton v. Congress Empire Spring Co., 57 N.Y. 518; Oscanyan v. Arms Co., 103 U.S. 261; Tench v. Lawson, 225 App. Div. 198; DiTomasso v. Loverro, 250 App. Div. 206, affd. 276 N.Y. 551.) There is no authority for the holding that urgency of motive provides an excuse for entering into an illegal engagement. [ 185 Misc. 837.]