124 N.Y.S. 478 | N.Y. App. Div. | 1910
Plaintiff alleges in his com plaint, first, an agreement with defendant to attend as a witness in ¿he Surrogate’s Court in New York county,
Plaintiff excepted to this part of the charge, and now contends, first, that the question of the invalidity of the contract on that ground cannot be raised under a general denial, and, second, that the court’s instruction was incorrect. In the absence of a motion by plaintiff to set aside the verdict for insufficiency of damages, and appeal from the order entered thereon, We think that neither of these questions is before us, but as the judgment which plaintiff did recover must be reversed and a new trial granted, it maybe expedient to consider both of them.
. When a contract is illegal upon the ground of public policy, and this fact appears upon the face of the complaint, or necessarily appears from plaintiff’s evidence, advantage of this may be taken by defendant under a general denial. (Milbank v. Jones, 127 N. Y. 370; Cary v. Western Union Tel. Co., 20 Abb. N. C. 333; Young v. Rummell, 2 Hill, 478; Edson v. Weston, 7 Cow. 278.), Where a witness who is not interested in the result of the controversy resides within this State, and is amenable to process therein, an agreement to compensate him in an amount in excess of the legal fees for attending as a witness and testifying only as to facts within his knowledge, is contrary to public policy and void. (Cowles v. Rochester Folding Box Co., 81 App. Div. 414; affd., 179 N. Y. 87, 92 ; Lyon v. Hussey, 82 Hun, 15; Willis v. Peckham, 1 Brod. & B. 515; Collins v. Godefroy, 1 Barn. & Ad. 950 ; Dodge v. Stiles, 26 Conn. 463; Walker v. Cook, 33 Ill. App. 561; Rams
Hieschberg, P. J., Woodward, Jenks and Thomas, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.