13 Abb. N. Cas. 384 | City of New York Municipal Court | 1884
This is an appeal from a judgment in
The action was upon a check or draft drawn by defendant in favor of plaintiff. The answer set up want of consideration, and under this answer defendant sought to prove that the clerk was given in settlement of a gaming transaction. I have carefully examined the authorities cited by the appellant and also many others, and have failed to find a single case which supports his contention, or which in any manner establishes the doctrine, that illegality of consideration (purely statutory) can be proven upon the trial under an answer simply alleging want of consideration.
The position of the respondent is, it seems to me, fully sustained by the authorities which he cites, and many others in this and other States and in England, and the rule seems to be firmly established, that where it is sought to prove the illegality of consideration for a negotiable instrument, or other contract sued upon, and such illegality does not necessarily appear f rom, the evidence offered by plaintiff to prove his contract, it can only be done under an answer specially pleading the illegality (Bolton v. Coghlan, 1 Bing. 640; Dungelden v. Third Ave. R. R. Co., 9 Bosw. 79 ; Mech. Bk. v. Williams, 44 Barb. 87; Tuthill v. Roberts, 11 Weekly Dig. 35 ; Boswell v. Welzhoefer, 9 Daly, 196). These cases are cited on respondent’s brief and sustain the point made by him, but I have examined several other cases on the point, and among them Hall v. U. S. Reflector Co. (18 Weekly Dig. 8).
The general term of the first department say : “ If defendant can succeed in defeating what otherwise appears to be a legal and valid claim, it must be upon some denial or defense alleged in the answer, and neither party can derive any advantage from evidence appearing upon the trial tending to establish a cause of action or defense not included in his pleading. In
In the cases cited by counsel for appellant and in other late cases, it has been held, that a defendant could take advantage of the statute of frauds without specially pleading it, and the reason of this rule seems to be that in any case, where a plaintiff declares upon a contract, he is bound to establish a contract binding in law ; and that is precisely the distinction between that class of cases and the case at bar. In such cases it would necessarily appear upon plaintiff’s proof of the contract, that it was within the statute of frauds and void, but in the case at bar the plaintiff’s case was made out by the introduction of the check in evidence, and he did not require the aid of the illegal transactions to establish his case ; and this seems to be the test (Swan v. Scott, 11 S. & R. 155; Wright v. Antwerp Pipe Co., 30 Pitts. Leg. J. 235).
A gaming transaction was not void at common law,
The appellant asked leave upon the trial to amend Ms answer so as to set up the facts showing the illegal character of the consideration. This was discretionary with the trial judge, and he denied the application, and as he had all the facts before him and we do not think his discretion abused, we must decline to reverse the judgment on that ground.
The judgment must be affirmed, with costs.
Note on Illegality as a Defense.
The practical importance of the question how far illegality is available if not pleaded, and the high authority of the case of Oscanyan Arms Co., 103 U. S. 261, which recognizes the principle that a court is not bound to sit for the enforcement of an illegal claim merely because the adverse party has not noticed the illegality in pleading, makes this and the next, cases of special interest.
The true view is probably one that would sustain the court in refusing to give relief upon an apparently illegal claim, and also in refusing to compel plaintiff to go on with the trial, if the illegality did not appear on the face of the pleadings or by plaintiff’s opening or evidence, until defendant had amended and opportunity had been given plaintiff to prepare for trial upon the issue of illegality.
A discussion of the question of the necessity of pleading such defense was recently had in the case of Marie ». Garrison (reported on other points in this vol. p. 328), and the opinion of Hon. Theo W. Dwight, the referee, on this question was in general accordance with the doctrine applied by Hall, J., to the case in the text.
That part of the learned referee’s opinion which relates to this question was as follows. The nature of the alleged ground of illegality appears in the report above referred to.
Dwight, Referee.—[After disposing of other questions.]—There is, however a ¡joint of mere technical nature to be considered, growing out of the rules of pleading and practice as now existing in this State.
It may be conceded that this is a serious statutory change in the law of pleading and practice, introduced into the law by the Code of Procedure (now Civil Procedure).
The leading authority upon this subject is McKyring v. Bull (16 N. Y. 297).
The elaborate opinion in this case was written by a very able judge, Samuel L. Selden, and concurred in by Judges Shankland, Com-stock, Brown, and Bowen. The history of a very relaxed rule of pleading, which had grown up in England, was traced, and which had permitted such defenses as payment, accord and satisfaction, release, etc., to, be resorted to under a general denial (page 300). This departure from principle is declared to have been in its consequences subversive of some of the main objects of pleading. It led to surprises upon the trial or to an unnecessary extent of preparation. The error had become so inveterate that the English courts found it impossible to retrace their steps without authority from Parliament. This authority was conferred by 3 and 4 William IV., c. 43, § 1, and a set of rules was thereupon adopted by the judges to require special matter to be pleaded by the defendant. These rules were further amended by a rule adopted in 1st Victoria (pages 301 to 306). The court then goes on to examine the section of the Code (then the 149th, now the 500th) which provides that the answer must contain any new matter constituting a defense, and holds that the word “must” supplies an imperative rule, and that, for example, payment, release, accord and satisfaction, arbitrament, etc., must be pleaded to be available to the defendant.
This luminous exposition of the law, made more than twenty-five years ago, has never been departed from, but has frequently been confirmed by subsequent decisions.
Accordingly, it has been held that the defense of illegality must be set up in the answer (Goodwin v. Mass. Mut. Ins. Co., 73 N. Y. 496; Cummins v. Barkalow, 1 Abb. Ct. App. Dec. 479, 485).
Tender must be set up in the answer (Sodenburg v. Ely, 90 N. Y. 266 ; Dewey v. Moyer, 72 N. Y. 77).
It will not be enough that the illegality appears in the proof. It must be alleged in the answer to be made available to the defendant (Brazil v. Isham, 13 N. Y. 9; Button v. McCauley, 38 Barb. 413; Wright v. Delafield, 25 N. Y. 266).
Accordingly, it has been decided in the highest court of the State that a successful motion to dismiss the complaint cannot be made at
■ The court, it will be observed, in McKyring v. Bull, supra, .laid much stress on the fact that the English courts had found that the departure from principle in the old English law, whereby new matter had been proved under a general denial, had been productive of much mischief, and that they returned to true principle by rules in 3 and 4 William IV-, and later. These courts have reached the same conclusions as the New York courts on the point now under consideration (Fenwick v. Laycock, 1 Gale & Dav. 27, cited in opinion of Chancellor Walworth in Nellis v. Clarke, 4 Hill. 430). To this case may be added Clutterback v. Coffin (3 M. & G. 842); Potts v. Sparrow (1 Bing. N. C. 594); Bradshaw v. Hayward (1 Car. & Marshman, 591).
In fact, the present English rule, after an experience of the new system for fifty years, is very clear and specific, and as being derived from the same general thought as our own is worth quoting (English Supreme Court Buies of 1883, p. 54, sub-rule' 15): 1 ‘ The defendant or plaintiff, as the cáse may be, must raise by his pleading all matters which show the action or counter-claim not to be maintainable, or that the transaction is void or voidable in point of law, and.all such grounds of defense or reply, as the case may be, , as if not raised would be likely to take the opposite party by surprise, or- would raise issues of fact not arising out of the preceding pleadings, as for instance, fraud, statute of limitations, release, payment, performance, facts showing illegality either by statute or common law, or statute of frauds.”
I believe this rule to be as sound and salutary in principle as it is perspicuous in statement, and that, at least so far as the present point is concerned, it is an accurate summary of the law of New York.
. Mr. Pomeroy, in his work on remedies, under the Codes of the several States, gives this as the consensus of them all. He says: “The rule is well settled in strict accordance with the true theory of pleadings under the Codes, that all defenses, based upon the asserted illegality of the contract in suit, which admit the fact of a transaction between the parties, purporting to be an agreement and apparently binding, but which insist that by reason of some violation of law the same is illegal and void, are new matter and must be set up in the answer ” (§ 708).
A word should be said as to the case of Oscanyan v. Arms Co., 103 U. S., 261. In that case the court misapprehended the effect of the New York decisions, as shown by its remarks at the close of the first paragraph on page 267. Moreover, in the succeeding paragraph,
It may be said, however, that there are some remarks of the court in Marie v. Garrison (83 N. Y. 26, 28), leading to the conclusion that the court discussed the question of illegality or fraud upon demurrer to the complaint, and that, accordingly, the defendant might on this motion raise the question on the plaintiffs’ testimony.
This argument is untenable. On a demurrer to the complaint the court is simply engaged in the construction of a written instrument, and nothing more. It is a settled rule of construction that the whole of an instrument must be taken together. So, if the pleader discloses illegality on the face of the complaint, the court must consider it with the other allegations (Calvo v. Davies, 73 N. Y. 211, 218). It was therefore proper for the court to discuss the whole tenor and bearing of the complaint upon this point. Having determined that the pleader had made no such blunder, the demurrer was overruled. The case now presents quite a different aspect. The demurrer is out of the way and is no longer available for any purpose (Wheelock v. Lee, 74 N. Y. 495). The case is now to be disposed of on complaint and answer. The complaint has been declared by the court of last resort to be good on its face. That is the law which must govern this court. The question now is, How can the defendant make use of the defense of illegality, as against a complaint, having in it no taint of that element or vice ? The answer has been shown from the authorities already cited: it is to the effect that he can make no use of it.
For these reasons I am of the opinion, that the defendant cannot raise the defense of illegality under the pleadings, as they now stand.
It is suggested that there is some hint or sketch in the answer of the defense of illegality sufficient to comply with the existing rule of pleading. I think not. It is not specific enough to show the intent of the pleader, or to meet the evil which the legislation on this subject is aimed at. This is, among other things, to guard the opposite party against surprise. I think that a defendant who means to raise the defense of illegality should be held to strict rules, and should express himself in plain terms. It is at best an ungracious defense, and particularly where one of the parties is in distress, and to relieve himself adopts measures which otherwise would not, perhaps, have suggested themselves to him. This defense is a peculiar object of
I do not cite this passage with a view of applying the stigmatizing terms used in it to the defendant. On the contrary, I believe that he was engaged in a perfectly valid and meritorious transaction with the plaintiffs. Still, even in that view, the principle is the same. He shall not be heard at all in a court of equity to raise the objection or illegality, whether well-founded or frivolous, unless he uses plain and distinct language. To this doctrine I give my most emphatic assent.
In every point of view, the objection of illegality, as made in this case, must be overruled.