#### Robert W. Millbank, Appl’t, *v.*Morgan Jones, Resp’t.1

*(Court of Appeals, Second Division,*

*Filed June 23, 1891.)*

Pleading and proof—Answer—General denial.

In an action to recover a certain sum of money and stock deposited by plaintiff with defendant, which was to he returned to plaintiff should a certain resolution not be passed by the common council so as to take effect before a designated day, the defendant offered to show that the alleged agreement was illegal. This proof was objected to as not admissible becausé not pleaded, the answer being a general denial, but the objection was overruled. *Held,*error; that as it neither appeared from the complaint or the evidence of plaintiff that the contract was illegal, the defendant could not avail himself of facts not appearing on the face of the contract to establish its invalidity.

Appeal from an order of the general term of the superior court of the city of New York, affirming a judgment in favor of the defendant entered on the verdict of a jury.

The action was brought to recover $5,000 and interest thereon which the plaintiff asserts the defendant held in trust for him pursuant to the terms of the following agreement:

“Resolved, That the street commissioner be and he is hereby authorized and directed to make a contract for lighting all the streets, avenues, roads, squares, parks, public buildings and places of the city of New York with coal gas. Such contract to be founded on sealed bids and proposals, and to be made with the company, giving adequate security to be approved by the comptroller in the manner provided by law, which shall agree to do the same for the lowest price for each lamp or light per annum, or quantity when it can be measured, according to the existing regulations, and affording to such company sufficient time to lay their mains and introduce gas as required by the contract. The provisions of the contract last made and executed with the Manhattan Gras Company, as far as practicable, shall be embodied in the contract made in pursuance of this resolution, and the term during which the same is to continue will be for the same number of years as that contract. Any resolution or ordinance inconsistent with this resolution is hereby repealed.

“New York, *June*14, 1866.

“ Received of E. W. Millbank five thousand dollars ($5,000), and also certificate for two hundred and fifty (250) shares of the stock of the People Gras Light Company of the city of New York, number seven (7), the said money and stock to be returned to said Millbank in case the resolution above shall not be passed and take effect before the 10th of July next

“ It being understood and agreed that said Millbank shall have the right, at his election, in case said resolution shall pass and take effect before the said 10th of July, to purchase back the said stock at any time within sixty (60) days from the time said reso- ' lution shall take effect, by paying to me fifteen thousand dollars ($15,000) therefor; and that he shall on his part be bound to pur*911chase the same and pay said fifteen thousand dollars ($15,000) therefor, within said sixty (60) days at my election.

“ Morgan Jones.

“ I assent to and join in the above understanding and agreement

*“*E. W. Millbank.

“New York, *June*14, 1866.”

*Ira*Shafer, for app’lt; *Joseph*Fettretch, for resp’t.

1

 Reversing 25 N. Y. State Rep., 868.

Parker, J.

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 $5,000 paid to him in the event that the resolution thereon referred to should not be passed and take effect before the 10th 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 10th, 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 argument that Jones, at the time of its execution, received from Milbank $5,000, which on the happening of a certain event he agreed to return. It did not provide that Jones should pay to Milbank $5,000, 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 10th 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 decisions 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 *912of 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 10th. 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 Abb. N. C., 333, 15 N. Y. State Rep., 204, 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., 348,1 N. Y. State Rep., 56 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 *913of 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. *The Third Ave. R. R. Co.,*37 N. Y., 575; *Goodwin*v. *Mass. Mut. Life Ins. Co.,*73 id., 480; *May*v. *Burras,*13 Abb. N. C., 384; *Haywood*v. *Jones,*10 Hun, 500; *Shreyer*v. *Mayor,*39 N.Y. Supr. Ct.,' 1; *Vischer*v. *Bagg,*21 W. Dig., 399; *Honegger*v. *Wettstein,*94 N. Y., 252.

The judgment should be reversed.

All concur.