103 N.Y.S. 480 | N.Y. App. Div. | 1907
Lead Opinion
This action is based upon a contract in writing which the defendant has insisted from the commencement of the litigation was void upon grounds of public policy. On two former appeals, after trials on the merits, wherein the record not only presented the contract, but proof of the nature and extent of the services rendered thereunder, this court adjudged that the contract was valid (56 App. Div. 244; 57 id. 426; 95 id. 360), basing its decision mainly upon the authority of Chesebroughv. Conover (140 N. Y. 382). We are now asked on the' face of the contract alone, which is set forth in. the complaint in hmc verba, to reconsider the former decisions of this court and declare the contract void upon the authority of Veazey v. Allen (173 N. Y. 359) which was drawn to the attention of this court on the second appeal, and on the authority of Hazelton v. Sheckells (202 U. S. 71) and Sussman v. Porter (137 Fed. Rep. 161, and cases therein cited). The views expressed in the opinion in Veazey v. Allen (supra), which in this regard were not essential to the decision, incline toward the doctrine subsequently announced by the Supreme Court of the United States in Hazelton v. Sheckells (supra), that the validity of a contract with respect to services concerning legislation or the action of public bodies or officials in awarding contracts is to be determined not by what is expressly contracted to be done, but upon what may be done thereunder and the tendency of the agreement, where the compensation is contingent upon success, to induce improper solicitation or the unlawful and corrupt use of money. The Court of Appeals, however, in the Veazey Case (supra) neither expressly modified nor overruled the Chesebrough case, but on the contrary reaffirmed its doctrine.
The interlocutory judgment should, therefore, be affirmed on the authority of the decisions of this court on the former appeals herein.
Pattebson, P. J., Houghton and Lambert, JJ., concurred; Scott, J., dissented.
Dissenting Opinion
I feel constrained to dissent from the affirmance of this judgment. It is not strictly accurate to say that the legality of the contract was determined on the first appeal. All that was then decided was that the question of its legality should have been submitted to the jury. (56 App. Div. 244.) Even this result was arrived at with reluctance and under what was supposed to be a relaxation of the strict rule of Mills v. Mills (40 N. Y. 543) embodied in the opinion in Chesebrough v. Conover (140 id. 382). Since the first appeal the Court of Appeals in Veazey v. Allen (173 N. Y. 359) have expressly reaffirmed the rule of Mills v. Mills in all its stringency, and have again held that the test to be applied to what is claimed to be a lobbying contract, is not that the parties actually stipulated for corrupt action, or intended that secret and improper resorts should be made, but that it is enough to condemn such a contract that it tends directly to these results, and furnishes a temptation to plain
Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below. Order filed.