Sharp v. Wright, 35 Barb. 236

Sharp v. Wright

35 Barb. 236 | N.Y. Sup. Ct. | 1861

Leonard, J.

1. At the time this action was tried, in 1858, it was not necessary, on the trial of a question of 'fact by the court, that the decision should find the questions of fact and of law separately, in writing. It was sufficient if the decision found generally in favor of the plaintiff or defendant. (Johnson v. Whitlock, 3 Kern. 344. Otis v. Spencer, 16 N. Y. Rep. 610.)

A defect in the decision, in omitting to find any question of fact involved, is not at present the subject of review on appeal, but must be brought before a judge on motion to correct the decision, before the omission can be considered at the general term. (Hulce v. Sherman, 13 How. Pr. Rep. 411, and the cases there cited.) The decision of the court in this case is, in effect, a general one, that the proof is not sufficient to maintain the action, and on that ground dismissing the complaint.

2. Were we to review the evidence, it would be wholly impossible for the court to arrive at the conclusion therefrom that the plaintiff was entitled to a decision in his favor. The plaintiff testifies, himself, that it was part of the consideration for the notes and money which he paid to the de*238fendants, that they should withdraw their hid. It is against public policy to uphold such a contract. It does not help the plaintiff’s case that the defendants failed to observe the rule of “ honor among thieves.” The plaintiff cannot insist that he has been made a victim because the defendants disregarded that rule, and that he is exempt from the application of the legal maxim “potior est conditio defendentis.” The exceptions taken to the exclusion or admission of evidence at the trial have been considered, and are not believed to be well founded.

[New York General Term, September 16, 1861.

The judgment should be affirmed with costs.

Clerke, P. J.

The parties were clearly in pari delicto, in the commission of an offense not only malum prohibitum but malum in se ; and in relation to parties so situated, the law unhesitatingly and invariably says: 1st. Whenever they have fraudulently or illegally contracted to do any thing, it refuses to enforce the execution or to award damages for the wcm-execution of such contract; and 2d. Whatever they have executed, it refuses to lend its aid to either party to disturb. The latter principle applies to the present case; the court refuses to aid the plaintiff in cancelling or disturbing the corrupt arrangement which he had consummated with the defendants.

Ingraham, J. concurred.

Judgment affirmed.

Clerke, Ingraham and Leonard, Justices.]