175 Misc. 625 | City of New York Municipal Court | 1940
There is no doubt that the plaintiff and defendant were habitual violators of the National Prohibition Act; that the money advanced (itself the proceeds of an illegal transaction) was for the purpose of enabling the defendant to continue infractions of that act; that the purpose was well known to the plaintiff, and that the latter aided in its consummation. These conclusions follow from the acts and conduct of the parties — implied as well as express. (Fidelity & Deposit Co. v. Palmer, 252 App. Div. 55.) In such circumstances the plaintiff can have no relief from a court.
This much plaintiff seems to concede, but he insists that he is aided by the repeal of the statute. Despite some decision to the contrary I cannot agree. For an act which, when done, was made unlawful — criminal — by statute does not have its taint removed by the subsequent repea of the statute. (Fitzsimons v. Eagle Brewing Co., 107 F. [2d] 712; cf. Holden v. Cosgrove, 12 Gray [Mass.] 216.) Lido Capital Corp. v. Vogel (161 Misc. 48), upon which plaintiff relies, is indeed a holding to the contrary, but that case, I believe, is based upon a misconception of the ruling in Bloch v. Frankfort Distillery, Inc. (247 App. Div. 864) The Appellate Division did not write, and a reading of the record does not show, that the question suggested by the plaintiff — aider by repeal — was necessarily involved. There both parties had carried on their activities in intoxicating liquors generally pursuant to
There will be judgment for the defendant dismissing the complaint.