178 Misc. 851 | N.Y. Sup. Ct. | 1942
Motion under rule 109 of the Rules of Civil Practice to strike out the first, second, third and fourth separate tinct defenses in the answer contained in paragraphs 4 through
This cause was before this court on a proceeding under section 1450 of the Civil Practice Act, and for a stay under section 1451 on an application to compel submission to arbitration. (Application of Jacoby, 33 N. Y. Supp. [2d], 621.)
The complaint is composed of four causes of action. The first cause of action relates to a written contract, made with defendant Jacoby on June 12, 1941, for the formation of a corporation, the defendant Thousand Hats, Inc., a copy of which is annexed to the complaint. The plaintiff sets forth twelve breaches by the defendant and rescission of the contract is sought. The second cause of action is also against defendant Jacoby, and also seeks rescission of a contract made between plaintiff and said defendant on June 24, 1941, a copy of which is annexed to the complaint. The third and fourth causes of action are against both defendant» Jacoby and Thousand Hats, Inc. By the third cause of action plaintiff seeks to recover the sum of $750 for work, labor and services performed at the special instance and request of the defendants. The fourth cause of action is to recover damages in the sum of $5,900.
The affirmative defenses concern the first and third causes of action only, i. e., for rescission of the contract ánd for work, labor and services. The first affirmative defense alleges that the performance of the contract was impossible by reason of the Presidential Executive Order because plaintiff was a resident of Hungary and a resident of Paris, France, on and after June 10, 1940; the second affirmative defense alleges a series of acts of misconduct committed by plaintiff as a result of which defendant rescinded the contract with plaintiff; the fMrd?affirmative defense alleges that on or about September 3, 194Í the plaintiff voluntarily declared the contract terminated and thereafter failed and refused to carry out the terms of the contract; the fourth affirmative defense alleges that the plaintiff at all times mentioned in the complaint was an alien who had not legally immigrated to the United States and therefore cannot recover for services rendered.
The second separate defense is sufficient, and the motion to strike it out is denied. Likewise the request for alternative relief is refused; the proper application for the details sought is by motion for a bill of particulars.
As to the third separate defense, it is withdrawn by counsel, in so far as it is directed to the third cause of action. In so far as it is sought to apply it to the first cause of action, the motion to strike it out is denied. This relates to paragraph 12 of the answer and alleges a repudiation of the contract by the plaintiff; it is a good defense. One who abandons or repudiates a contract may not enforce against the other party to it.
We come now to the final objection, viz., as to the fourth separate defense, that plaintiff is barred from recovery upon his cause of action for work, labor and services performed at the special instance and request of the defendants because he illegally entered the United States; paragraph “ Thirteenth” of the amended answer reads as follows: “ That the plaintiff was at all times mentioned in the complaint an alien who had not legally immigrated to the United States, and therefore cannot recover for services rendered within this country.”
Reliance is placed on section 141 of title 8 of the United States Code, reading as follows: “All contracts or agreements, express or implied, parol, or special, which may be made by and betweén any
The defendants rely on Coules v. Pharris (212 Wis. 558, 250 N. W. 404) in support of their claim; it was an action to recover for personal services performed for defendant who admitted the services were rendered, but raised the question as to the plaintiff’s capacity to bring an action to recover for wages earned in the performance of labor, the plaintiff being at the time an alien and unlawfully within the boundaries of this country. The Supreme Court of Wisconsin held that a recovery was barred and reversed a judgment in plaintiff’s favor with directions to dismiss the complaint: the court declared that where the statute was shown to have been violated, public policy required that the alien should be deprived of any right to recover.
An examination of this enactment reveals that the contracts or agreements that are denounced and rendered unenforcible are only those made “ previous ” to the migration or importation into the United States of the person or persons whose labor or service is contracted for. It does not declare void or in any manner vitiate contracts or agreements made after their entry into the United States, even though such entry and continued presence is unlawful. The sole penalties prescribed for unlawful entry are deportation or fine and imprisonment; no civil rights or right to sue or seek redress in judicial tribunals is denied to an alien here under the circumstances mentioned, and I do not see how it can be read into the statute without violating basic rules of statutory construction. “It is a universal principle in the interpretation of statutes that expressio unius est exdusio alterius ” (1 McKinney’s Statutes, Consol. Laws, [1942], § 240), namely, the specific mention of one person or thing implies the exclusion of.other persons or things; where a statute expressly describes the particular act, thing or person to which it shall apply, it is a general, if not altogether irresistible, inference that what is omitted or not included was intended to be omitted and excluded; these are fundamental as well as elementary rules of statutory construction, and I am of the opinion that section 141 of title 8 of the United States Code cannot be extended to embrace and include contracts or agreements made subsequent to the migration of the alien into the United States, even by application of the rule of public policy, without emasculating the mentioned basic rules and principles of statutory construction.
Moreover, to deny to such an entrant the right to seek redress would violate, in my opinion, section 1 of the Fourteenth Amendment to the Constitution of the United States, which makes no discrimination and provides that no State shall “ deny to any person within its jurisdiction the equal protection of the laws.”
Accordingly, the motion to strike out the fourth affirmative defense is granted.
Motion disposed of as indicated. Settle order.