79 A.D. 15 | N.Y. App. Div. | 1903
It is conceded that the plaintiff is a real estate broker, doing business in the borough of Brooklyn, and that he was orally authorized by the defendants to find a purchaser for two houses owned by the defendants, and that subsequent to January, 1902, he did procure a purchaser ready, willing and able to purchase on defendants’ terms. It appears that the defendants, for some reason, refused to make
It will be assumed that the plaintiff cannot invoke the aid of the courts to enforce an unlawful contract, and we will pass directly to the question raised at the trial and urged upon this appeal, that the statute above cited is unconstitutional and void. In the year'1887 the Legislature of this .State enacted chapter 691, which is entitled, “ An act to amend the Penal Code by adding an additional section thereto to be known as ‘ section three hundred and thirty-five A.’ ” It was provided in this section that “No person shall sell, exchange or dispose of any article of food or offer or attempt to do so upon any representation, advertisement, notice or -inducement that any thing other than what is specifically stated to be the subject of the sale or exchange is or is to be delivered or received or in any way connected with or a part of the transaction as a gift, prize, premium or reward to the purchaser. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor and, in addition thereto, shall be liable to a penalty of twenty-five dollars, to be recovered, with costs, by any person suing therefor in his own name.” One Gillson was arrested and convicted of a violation of this statute, and his conviction was affirmed by the General Term of the Supreme Court. On an appeal to the Court of Appeals (People v. Gillson, 109 N. Y. 389) the limitations of legislative power were fully discussed and considered, and the court say: “ Nor can this act stand as a valid exercise of legislative power to enact what shall amount to a crime. The power of the Legislature to so declare is exceedingly large and it is difficult to define its
“ A person living under our Constitution has the right to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit. The term £ liberty,’ as used in the Constitution, is not dwarfed into mere freedom from physical restraint of the person of the citizen as by incarceration, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. Liberty, in its broad sense, as understood in this country, means the right not only of freedom from servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling and to pursue auy lawful trade or avocation.” (People v. Gillson, supra, 398, 399, and authorities there cited.) These remarks apply equally to those provisions of the United States Constitution (14th amendt. § 1) which provide: “Nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” It is accordingly enacted by section 1977 of the United States Revised Statutes that “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” ( Yick Wo v. Hopkins, 118 U. S. 356.)
In Allgeyer v. Louisiana (165 U. S. 578, 589) the court say: “The liberty mentioned in that amendment means not only the
These declarations of the courts, in dealing with these constitutional clauses for the protection of individual rights are fully in
The judgment appealed from should be reversed, and a new trial ordered, costs to abide the event.
Goodrich, P. J., Hibschbeeg and Jenks, JJ., concurred ; Bartlett, J., concurred in result.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.