
    Francis C. Lawrence, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed June 2, 1891.)
    
    Railroads—Elevated—Evidence.
    In an action for damages to plaintiff's property through defendant’s railroad having been built through the street, the trial judge refused upon defendants’ request to find that plaintiff’s house was used as a house of prostitution to the knowledge of plaintiff’s agent, and also that for the purpose for which it was used the acts of defendant had caused no diminution in the rental value. Held, no error; the fact that the house had been so used did not enter as an element into the award of damages, nor could that fact be properly considered.
    Appeal from judgment of the Mew York common pleas, general term, affirming judgment in favor of plaintiff.
    
      Brainard Tolles, for app’lts ; Henry A. Forster, for resp’t.
   Andrews, J.

The judgment awarded to the plaintiff damages in the sum of $2,150, for loss in the diminution of rents of premises in Amity street, in the city of Mew York, owned by the plaintiff, between April 26, 1882, and the time of the trial, occasioned by the construction of the elevated railway in the street, and also awarded an injunction against the further maintenance of the structure, unless the defendant should pay to the plaintiff the sum of $4,000, which was found to be the permanent depreciation in the value of the plaintiff’s property, by reason of the maintenance and operation of. the defendant’s road, upon the assumption that the street should continue to be used for the railway.

The defendants do not assail these findings, nor question the measure or character of the relief granted by the judgment, except upon a single ground. Evidence was given tending to show that prior to the construction of the elevated railway, and from time to time subsequent thereto, during the period for which loss of rents was claimed and awarded, the house on the premises was let by the plaintiff to tenants, and was by them used as a house of prostitution ; the plaintiff during the whole period for which damages were claimed lived abroad, and the premises were placed in the charge of a real estate agent, who let them for the plaintiff.

The evidence on the part of the plaintiff tended to show that the construction and operation of the railway in Amity street had resulted in making the locality less desirable for residence purposes, and that in consequence the owners of tenant houses on the street were obliged, in order that they should be occupied, to let them to an inferior class of tenants for brief periods and at a reduced rent.

The plaintiff’s agent rented the house in question to such tenants as applied, and among others who occupied the house for a part of the period for which damages were awarded were persons who used the house for disreputable purposes. It is not claimed that the' house was let for the purpose of being used as a house of prostitution, and while there is some evidence tending to show that the plaintiff’s agent had notice that in some cases the house was so used and that he renewed leases after such notice, there is an entire absence of any evidence that the agent in any way affirmatively aided, abetted or countenanced such use, or that the rent was fixed with any reference thereto.

The locality seems to have steadily deteriorated in the character of its inhabitants since the construction of the railway.

The defendants’ counsel requested the trial judge to find that the plaintiff’s house was used as a house of prostitution to the knowledge of the plaintiff’s agent, and also that for the purposes-for which it was used the acts of the defendant had caused no-diminution in the rental value. The court refused these requests-as irrelevant and an exception was taken. Exceptions to the refusal to find these facts present the only questions upon which the defendants rely for a reversal of the judgment. The principle that courts will not lend their aid to enforce any claim repugnant to justice or bottomed upon an illegal transaction, or give relief contrary to good morals or public policy, is familiar and is founded upon the most obvious policy. The rule is most frequently invoked in cases on contract. Where a party seeks to enforce a contract obligation the consideration of which is illegal, or which provides for the performance of an illegal or criminal act, the case is plain. There is a class of cases, however, where the contract sued upon appears to have some relation to an illegal transaction, or, in a sense, to spring out of it, where the courts have had difficulty in determining whether the contract fell within the principle. The sale of smuggled goods, or the sale of goods which the vendor knew were purchased to be smuggled, doing nothing to aid or in furtherance of the illegal purpose beyond the bare act of sale, are exceptions. The general doctrine in these and like cases was very exhaustively considered in the opinions on the argument and re-argument in Tracy v. Talmage, 14 N. Y., 162; S. C., p. 210.

In the present case the plaintiff is not seeking to enforce an illegal contract, nor indeed any contract at all. His claim is based upon a trespass whereby he has been prevented from receiving rents from his house which he would have received except for the unauthorized use of the street by the defendants, and to restrain the further continuance of the trespass except on condition of compensation being made for the injury to the inheritance. The fact that the house had been used as a • house of prostitution did not enter as an element into the award of damages, nor could that fact be properly considered. If the plaintiff had sought to enhance the damages on the ground that the rental value of the house as a house of prostitution had been depreciated by the construction of the railway, and.the award had been based upon that consideration, the defendants would have had just ground of complaint. If the fact had been found that the acts of the defendants did not diminish the rental value of the house as a house of prostitution, it would not show or tend to show that the plaintiff had not been injured in the amount awarded by the court The testimony showed that the railway had diminished, by the amount awarded, the rents which would have been realized for the ordinary use of the property.

W e are of opinion that the requests to find were properly refused. They were based upon a misapprehension of the doctrine that courts will not enforce immoral or illegal claims. The particular use of the house had nothing to do with the injury suffered by the plaintiff, but the injury was wholly independent of such use. The occupation of the house as a house of prostitution was no justification of the injury of which the plaintiff complains. The plaintiff is not seeking to enforce any claim founded upon such occupation. The judgment neither satiations nor encourages such use. It awards damages which the plaintiff has sustained, however the house may have been occupied. The case of Ely v. Supervisors, 36 N. Y., 297, is quite analogous. It was there lield that it was no defense to the liability of a county for the destruction of the plaintiff’s house by a mob that the house was kept by her as a bawdy house and a resort for thieves and criminals.

The findings requested were irrelevant and the judgment should therefore be affirmed.

Judgment affirmed, with costs.

All concur. 
      
       Affirming 35 N. Y. State Rep., 39.
     