
    John R. Platt, Appellant, v. Hannah Elias, Respondent, Impleaded with Others.
    1. Evidence — Presumption of Undue Influence Arising From Meretricious Relations One of Fact. Tlie presumption tlmt a woman living in meretricious relations with a man has by the exercise of undue influence obtained money from bim is a presumption of fact not of law; it leaves the trial court at liberty to And undue influence from the fact of such relation, but does not compel it to do so, especially in a case where the presumption is overcome by testimony,
    2. Immoral Consideration Not Recoverable. Where illicit sexual intercourse is the consideration for the payment of money and the money has been paid the courts will not aid the donor to recover it.
    
      Platt v. Elias, 108 App. Div. 365, affirmed.
    (Argued October 19, 1906;
    decided November 20, 1906.)
    Appeal from a judgment of' the Appellate Division of the Supreme Court in the first judicial department, entered November 21, 1905, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term.
    The plaintiff brought this action against Hannah Elias and fourteen banks and trust companies to impress a trust upon moneys alleged to have been extorted from him by the defendant Elias, and to have been deposited by her with the other defendants. The complaint was verified on May 27,190Í. It charged that “ between 1896 and the date hereof said defendant has blackmailed this plaintiff out of upwards of $685,385.” It contained numerous specific allegations of obtaining money by means of threats and extortion. The substance of these allegations was that the plaintiff, already an old man, entered upon illicit relations with the defendant Elias, then a comparatively young woman, a negress and a courtesan, and that after their adulterous relations had existed for some years she began to extort money from him by threats of publicity and threats of personal assault and succeeded in thus obtaining from him the large sum already mentioned, the greater part of which was paid to- her subsequently to the 1st day of January, 1896. ^
    The defendant Elias interposed. an answer denying all allegations of blackmail, extortion or threats and setting up the following affirmative defense: “ That prior to and since the 1st day of January, 1896, this plaintiff has voluntarily cohabited with and maintained this defendant, and this defendant has been the mistress and friend of this plaintiff,' and that this plaintiff, prior to and since the 1st day of January, 1896, voluntarily gave this defendant, as his mistress and friend, various sums of money, the exact amounts of which, and the dates upon which said sums were given by this plaintiff to this defendant, this defendant is unable to state. That all the moneys received by this defendant from this plaintiff were given voluntarily by this plaintiff to this defendant, as his mistress and friend.”
    The other defendants served answers which do not call for any consideration upon this appeal except to say that they sufficed to put the plaintiff to his proof.
    Upon the trial at the close of the evidence on both sides the court rendered judgment' in favor of the defendant directing a dismissal of the complaint, but not upon the merits, on the ground that the proof failed to sustain the claim of the plaintiff, who based his right to recover solely upon allegations of blackmail and extortion by means of threats of bodily harm and the exposure of his relations with the defendant Elias. The trial judge also held that relief could not be granted on the ground of undue influence, aa it had not been alleged, and consequently was not in issue.. He made elaborate. findings of fact which established the payment of money substantially as alleged by the plaintiff, but .negatived every general or specific allegation of blackmail or extortion contained in the complaint, and he found as a conclusion of law that such sums of money as were mentioned in the complaint or as had been proven to have passed from the plaintiff to said defendant were not obtained by said defendant from the plaintiff by blackmail, threats or extortion.
    This judgment at the Special Term was unanimously affirmed by the Appellate Division in an opinion which, among other things, contains the following: “It is undoubtedly true that the relations which are proven to have existed between the plaintiff and the defendant Elias were such as would give rise to a presumption that the large sums of money which the latter received from the former were acquired through undue influence, but that presumption is entirely overcome by the testimony of the plaintiff himself.”
    
      
      Lyman E. Warren and Ira L. Warren for appellant.
    Judgment should have been rendered for the plaintiff on the findings of the trial court, and on the undisputed evidence. (Whalen v. Whalen, 3 Cow. 537; Eadie v. Simmons, 26 N. Y. 12; Matter of Will of Smith, 95 N. Y. 522; Brice v. Brice, 5 Barb. 541; Cowen v. Cornell, 75 N. Y. 101; Seers v. Shafer, 6 N. Y. 268; Clark v. Fisher, 1 Paige, 176; Bevans v. Jarnagan, 5 Baxt. 282; Cooke v. La Motte, 15 Beav. 240 ; Robinson v. Cox, 9 Mod. 263.) The evidence in this case is amply sufficient to sustain a judgment on the ground that this money was obtained by the defendant Elias by fraud and extortion. (Weller v. Weller, 44 Hun, 172; People v. Thomson, 97 N. Y. 313; People v. Wightman, 104 N. Y. 598.) The complaint states a good cause of action in equity to have defendant Elias and the other defendants declared to be constructive trustees for the plaintiff. (Haddon v. Lundy, 59 N. Y. 326; Zimmerman v. Kinkle, 108 N. Y. 282; Haddon v. Dundy, 59 N. Y. 320; 2 Story’s Eq. Juris. § 1255; Pom. Eq. J uris. § 1053; N. Y. & B. F. Co. v. Moore, 102 N. Y. 667; Newton v. Porter, 69 N. Y. 133; National Bank v. Barry, 125 Mass. 20; Platt v. Platt, 2 T. & C. 25; 58 N. Y. 646; 61 N. Y. 145.)
    
      Laniel Laly for respondent.
    The rule requiring a recovery to be secundum allegata still prevails in this state. (Wright v. Delafield, 25 N. Y. 270; Bank v. Eames, 1 Keyes, 592; Truesdell v. Sarles, 104 N. Y. 167; Day v. Town of New Lots, 107 N. Y. 154; Baird v. Mayor, etc., 96 N. Y. 603; Dickinson v. Mayor, etc., 92 N. Y. 588; Fisher v. Rankin, 25 Abb. [N. C.] 194.) The essence of the charge in the complaint was the obtaining of money by means of threats, intimidation, coercion, force, violence and assault, and the fear thereby induced. Such a charge is vitally distinct from one of obtaining money by the subtle and comparatively pacific means known to the law as the exercise of “undue influence.” (C. A. Society v. Loveridye, 70 N. Y. 394; Rollwagen v. Rollwagen, 63 N. Y. 520; Matter 
      
      of Snelling, 136 N. Y. 517; Horn v. Pullman, 72 N. Y. 277.) The evidence failed to establish .the cause of action alleged. (Krekeler v. Aulbach, 16 N. Y. 374; Marden v. Dorthy, 160 N. Y. 45; Hay v. Knauth, 160 N. Y. 303; Cronin v. Lord, 161 N. Y. 95; Hamilton v. N. Y. C. R. R. Co., 51 N. Y. 106.) The trial court properly refused to find that “the said sum of §684,829.25 was obtained of the plaintiff by the defendant Hannah Elias by undue influence. exercised by her over the plaintiff.” (Hay v. Knauth, 60 N. Y. 303; Deland v. Richardson, 4 Den. 95; Marvin v. U. T. Ins. Co., 85 N. Y. 278 ; Matter of Rand, 28 Misc. Rep. 465 ; Matter of Westerman, 29 Misc. Rep. 409 ; Matter of Mondorf, 110 N. Y. 450.)
   Willard Bartlett, J.

In view of the findings of fact made by the trial court and the unanimous affirmance by the Appellate Division, I am unable to perceive any .ground which would justify us in interfering with this judgment. So far as the express allegations of the complaint are concerned, the learned judge at Special Term has found that the respondent did not commit any of the acts of blackmail or extortion which are charged therein. These findings being amply sufficient to sustain the conclusions of law and having been unanimously affirmed by the Appellate Division leave no question open for consideration in this court unless it be true, as is contended in behalf of the appellant, that notwith-. standing the absence of any specific averment of undue influence in the complaint the trial court was bound to presume the existence and exercise of such influence by reason of the facts which were found as to the illicit sexual relations between the appellant and the respondent at the time of making the gifts which are the subject of attack in this suit. The learned counsel for the appellant invokes the doctrine which is nowhere better stated than 'by Mr. Justice Cooley in his well-known work on the Law of Torts in these words: “ Where a transaction is brought about while the parties are living in illegal sexual relations it is always open to suspicion of fraud or undue influence, and if it is a gift or a sale for an inadequate consideration, or if it is specially beneficial to one party rather than to the other, the party benefited by it will be under the necessity of showing that no advantage was taken and that.it was the result of free volition.” (2 Cooley on Torts [3d ed.], 982.)

The proposition presented for our sanction is that the rule thus laid down made it the duty of the judge at Special Term to find that the gifts from the appellant to the respondent were induced by the exercise of undue influence as soon as he was convinced that the donor ivas maintaining the donee as his mistress. This proposition necessarily rests upon the hypothesis that the presumption of undue influence arising out of illicit sexual cohabitation is a presumption of law rather than a presumption of fact. If this view as to the character of the presumption he correct, then proof which establishes the existence of the illicit relation would necessarily demand the inference that gifts made during the continuance of that relation were brought about by the exercise of undue influence; for a presumption of law is a rule which requires that a particular inference must he drawn from an ascertained state of facts. If, on the other hand, the presumption of undue influence in the case of a gift by a man to a woman with whom he has a meretricious connection is only a presumption of fact, it merely warrants the trial court in deducing the exercise of undue influence from the fact that the sexual relations between the parties were improper, hut does not absolutely demand that such an inference shall he drawn from that fact. In other words, a presumption of fact leaves the trial court at liberty to infer certain conclusions from a certain set of circumstances, but does not compel it. to do so.

Ail examination of the various cases relied upon to support the position of the appellant shows quite clearly, I think, that the presumption of undue .influence in respect to gifts by a man to his mistress has generally been regarded by the courts as a presumption of fact. The case of Dean v. Negley (41 Pa. St. 312) was a feigned issue to determine the validity of the will of one William Johnston. The parties opposing the will offered to prove upon the trial among other tilings that Johnston both before and after the death of his wife maintained a continuous adulterous intercourse with a Mrs. Bolton who was the mother of the children to whom he had devised the hulk of his estate. It was held that the trial court erred in refusing to receive proof of the relation between the testator and Mrs. Bolton. The opinion of the Supreme Court was delivered by Lowbie, C. J.j who said: “ There can he no doubt that a long-continued relation of adulterous intercourse is a relation of great mutual Influence of each over the mind and person and property of the other. History abounds with proofs of it, and it requires no very long life, or very close observation of persons around us, in order to reveal the fact. * * _ * I f, then, there was such a relation between the testator and Mrs. Bolton at the time of making the will, as was offered to he proved, we think that that fact, taken in connection with the devise to Mrs. Bolton’s daughters, is evidence of an undue influence exerted by her over the testator, and affecting the dispositions of his will, and that it may justify a verdict against the validity of the will. I have, myself, thought that it raised a presumjMon of lavj of undue influence, but we do not so decide, hut leave it as a question of fact merely.” Here we have a distinct refusal by the Supreme Court of Pennsylvania to treat the presumption as one of law. In other states where it has been asserted that the exercise of unlawful influence will he presumed in cases where the parties to a gift live in adulterous or illicit relations in the absence of proof of a legal consideration, I find nothing in the language of the courts which conveys the idea that they regarded the presumption as one which must be adopted, as would he the case if it were deemed a presumption of law. The import of the decisions is merely that the jury or "the chancellor, as the case may be, will be justified in assuming the exercise of undue influence under such circumstances so as to impose upon the donee the burden of establishing a lawful consideration, hut that the rule which permits this to be done is not imperative upon the trial court so as to constrain it to reach that conclusion. (Shipman v. Furniss, 69 Ala. 555 ; Leighton v. Orr, 44 la. 679, and Hanna v. Wilcox, 53 Ia. 547.) In the case last cited an attack was made upon a conveyance executed by a deceased grantor to a woman with whom he was living in adulterous relations at the time when the deed was made. “ The exercise of unlawful influence,” said the Supreme Court of Iowa, “ will be presumed where the parties to a deed live in adulterous relations in the absence of proof of a lawful consideration.” This remark must have been intended to assert the rule stated as a presumption of fact rather than a presumption of law, because the case was triable in the Supreme Court de novo and the opinion was rendered at the conclusion of the trial therein.

Irrespective of judicial authority in other states, however, and even if a different view prevailed elsewhere, I think it is carrying the rule, of evidence applicable to such cases as that before us far enough to hold that the presumption under consideration is simply a presumption of fact which will sustain a judgment based upon undue influence if the trial court chooses to adopt it, but which the trial court is not constrained to adopt. I see no reason why the presumption here should be any stronger than that which arises in a prosecution for larceny by reason of the recent possession of stolen goods. While the recent possession of stolen property by a person is held to raise a presumption of guilt it is not one which necessarily requires a conviction but is merely a fact for the consideration of the jury under all the circumstances of the case. (People v. Weldon, 111 N. Y. 569.) In the case at bar the Appellate Division recognized that the relations between the appellant and the respondent had been proven to be such as would have authorized a presumption of undue influence by the trial judge if he had seen tit to make it; but the opinion goes on to declare that such presumption was entirely overcome by the testimony of the plaintiff himself. In other words, the Appellate Division has held, correctly, as I think, that the presumption was not absolute, and has further asserted, in the exercise of its power to deal exclusively with the facts, that the learned trial judge did right in rejecting it.

While it may seem unfortunate that the effect of the present judgment is to leave in the possession of the respondent a very large sum of money which she obtained from the appellant as his mistress, it is to be observed that the courts below have found in effect that the payments were wholly voluntary. If it be true that they were induced by the sexual intimacy between the parties a court' of equity could not interfere at the instance of the donor to enable him to recover his money inasmuch as the gift has been fully executed and the consideration ivas plainly immoral. Where illicit sexual intercourse is the consideration for the payment of money and the money has been paid, the courts will not aid the donor to recover it back any more than they would enforce in behalf of a woman the unexecuted promise of a man to pay her money in consideration of such intercourse. (2 Schouler’s Personal Property [3d ed.], § 61.) “That which one promises to give for an illegal or immoral consideration he cannot be compelled to give; and that which he has given on such a consideration he cannot recover. The law will not afford relief to either party, in pari causa turpitudinis ; but leaves them just where they have placed themselves.” (Monatt v. Parker, 30 La. Ann. 585.)

I find no,error of law in this record ; the determination of the courts below upon the question of fact is not reviewall]v here; and I, therefore, advise the affirmance of the judgment, with costs.

Cullen, Ch. J., Haight, Vann, Werner and IIiscock, JJ., concur; Gray, J., absent.

Judgment affirmed.  