
    Edward Cooley, Jr., Respondent, v. The City of New York, Appellant.
    
      Pleading—separate defenses which might be proved under a general denial stricken out — defense that a town incorporated into the Greater New York had, before that event, against public policy, increased the pay of one of its employees.
    
    The complaint in an action brought against the city of New York alleged that prior to January 1, 1898, the time when the Greater New York charter (Laws of 1897, chap. 378) took effect, the plaintiff was a regularly appointed clerk of one of the villages incorporated into the city of New York at an annual salary of §1,200; that, pursuant to section 1536 of the Greater New York charter, he was on or about the 1st day of December, 1897, assigned to duty in the office of the city clerk of the city of New York; that he performed work in that office in connection with the records of the village of which he had formerly been the clerk from January 1, 1898, to March 29, 1898; that there was owing to him for such services the sum of §293.67; that he had presented his claim to the comptroller, but that it had not been paid.
    The defendant denied all the allegations of the complaint, except its incorporation and the presentation and non-payment of the claim. It alleged as a first and separate defense that the office of village clerk of the village mentioned in the complaint was on January 1, 1898, abolished, and that the plaintiff was not • assigned or transferred, as alleged in the complaint, and did not in any way become an employee of the defendant.
    For a second and separate defense, the defendant alleged that the plaintiff never reported for duty or entered upon the discharge cf the duties of the position mentioned in the complaint.
    For a third separate and partial defense, the defendant alleged that if the plaintiff was appointed village clerk it was at the salary of §200 per annum, and that the attempt to fix the salary at §1,200 was null and void and against public policy and a fraud upon the city of New York, and that the village officers when fixing the salary at that amount neither intended to nor did really act for the village, but for the city of New York, for which they had no power to act.
    
      Held, that the matter set forth in the first and second separate defenses could be proved under the general denial, and that such defenses were properly stricken out as irrelevant and redundant;
    That the third separate and partial defense was properly pleaded, for the reason that the defendant would not be permitted to give evidence tending to show that the contract was against public policy and, therefore, illegal, without an allegation to that effect.
    Appeal by the defendant, The City of New York, from an order . of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of' the county of Queens on the 18th day of April,. 1903, granting the plaintiff’s motion to strike out certain paragraphs in the defendant’s answer.
    
      James McKeen, for the appellant.
    
      Joseph Fitch, for the respondent.
   Hookeb, J.:

In his complaint the plaintiff alleges that the defendant is' a municipal corporation organized pursuant to chapter 378 of the Laws of 1897, as amended, which took effect January 1, 1898; that prior to the latter date plaintiff, was a regularly appointed clerk of one of the villages included within the greater city of New York, at an annual salary of $1,200 ; that pursuant to section 1536 of the Greater New York charter (Laws of 1897, chap. 378) he was, on or about the 1st day of December, 1897, assigned to duty in the office of the city clerk of the city of New York; that he performed work in that office in connection with the records of the village of which he formerly had been clerk from January 1,1898, to the twenty-ninth of March in the same year, and that on that account there was owing to him the sum of $293.67, and that a proper account, in writing, had been- presented to the comptroller; that more-than thirty days have elapsed since the presentation, and no part of the claim has been paid. The defendant denies all of the allegations in the complaint'except, its own incorporation, and the presentation to, and non-payment by, the comptroller of the plaintiff’s claim; The defendant then alleges, as a first and separate defense that the office of village clerk of the. village mentioned in the complaint was, on the 1st of January,. 1898, pursuant to statute, abolished, and that the plaintiff was not assigned or transferred as therein alleged, and did not become an employee of the defendant in any way. This clearly may be proved under the general denial, and is not such matter of: defense as, pursuant to section 500 of the Code of Civil Procedure, the defendant may incorporate in its answer.

For a second and separate defense the defendant alleges that plaintiff never reported for duty, or entered upon the discharge of the duties of the position mentioned in the complaint. It requires no-reasoning to reach the conclusion that this is a mere denial of the performance of work plaintiff alleged he did, and is sufficiently alleged in the general denial contained in the 1st paragraph of defendant’s answer-.

For a third separate and partial defense the defendant alleges that if plaintiff was appointed village clerk, it was at the salary of $200 per annum, and that the attempted fixing of salary at $1,200 was null and void and against public policy and a fraud upon the city of Yew York, and that the officers of the village when fixing the salary at that amount neither intended to nor did really act for the village, but for the city of Yew York, for which they had no power to act.

Plaintiff moved at Special Term to strike out the first and second separate defenses as redundant and irrelevant, and the third separate defense as redundant, irrelevant and scandalous. The motion was granted, and defendant appeals to this court.

From what has been said it follows that the order must be affirmed as far as it treats of the first and second defenses of defendant’s answer. The respondent says in his brief: “ The third separate defense states irrelevant matter; anything which may be relevant as to the manner of plaintiff’s appointment may be proved under the general denial.” We think he has fallen into error. Although the language in defendant’s third separate and partial defense is somewhat vague and indefinite, and may not be entirely free from the criticism that facts rather than conclusions should be alleged, we think it may be gathered that defendant is attempting to lay the foundation for proof upon the trial that the conduct of the officers of the village who appointed the plaintiff, together with his accepting the appointment at an advanced salary, was against public policy because not prompted by good faith toward the greater city, and intended to embarrass and control the latter in relation to the salary it should pay the plaintiff. Hendrickson v. City of New York (160 N. Y. 144) was a case where the contract was made on the 17th day of December, 1897, between the town of Jamaica and the Jamaica Electric Light Company, regulating for ten years the lighting of territory that would on the 1st of January, 1898, become a part of - the greater city, and the court held the contract to be void on account of the lack of good faith by the town and because it was intended to embarrass and control the city of Yew York for a long period of time under its execution, and that the “ legislative scheme, as contained in the Greater' Hew York charter, discloses a public policy that was. violated by the execution of this contract.” Such conduct is thereby shown to be treated by the Court of Appeals as-against public policy, and the third séparate partial defense" in the defendant’s answer should have been allowed to remain therein, for the reason that the defendant would not have been permitted to give evidence tending to show that the contract was against public policy and, therefore, illegal, without an allegation to that effect. (Milbank v. Jones, 127 N. Y. 370; Keans v. New York & College Point Ferry Co., 17 Misc. Rep. 272; Honegger v. Wettstein, 94 N. Y. 252; Boyer v. Fenn, 19 Misc. Rep. 128.) These views lead to the conclusion that the matter contained in the third separate defense in the answer was not only not redundant and irrelevant, but quite' necessary to be pleaded in order to admit proof of the facts.

The order should, therefore, be modified so as to provide for the striking out of the first -and second separate defenses only, and as-modified affirmed, without costs.

Bartlett, Woodward and Hirsohberg, JJ., concurred.

Order modified in accordance with opinion of Hooker, J., and as modified affirmed, without costs.  