
    ROBERT W. MILBANK, Appellant, v. MORGAN JONES, Respondent.
    
      Contract, illegality of, &c.—Pleadings, under an answer containing a general denial only to the complaint that sets up a contract, can defendant prove the illegality of the contract.
    
    The complaint averred that the defendant received, as trustee for the plaintiff, certain moneys and shares of stock upon the express condition that the trust might be terminated by plaintiff, at his election, on or after July, 10 1866. That plaintiff had given due notice to defendant of his election to terminate the trust, &c., and demanded the money and stock, but defendant had refused, <fcc., &e. The answer denied each and every allegation of the complaint. On the trial, after plaintiff had submitted his proofs, the defendant offered to show, and did show against the objection of the plaintiff, that the contract or the transaction, as proven by plaintiff, was illegal, and made to secure from defendant lobbying services. The objection to this proof (which was overruled by the court) was that such a defence had not been pleaded. On this question the judges of the court were divided in opinion, but all agree that the judgment should be affirmed, on the ground that the proofs of the plaintiff do not sustain the cause of action alleged in the complaint, and that, irrespective of the evidence objected to, the illegality of the contract appears.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided June 28, 1889.
    Appeal by plaintiff from judgment entered in favor of the defendant upon the verdict of a jury, and from order denying plaintiff’s motion for a new trial.
    
      Booraem & Hamilton, attorneys, and Ira Shafer, of counsel, for appellant.
    
      John M. Jones, attorney, and Joseph Fettretch, of counsel, for respondent.
   By the Court.—Sedgwick, Ch., J.

The complaint averred that on, &c., “ the defendant above named received as trustee for the plaintiff, $5,000 in cash, which said sum he has ever since continued to hold in trust for this plaintiff; that by the terms and conditions of the said trust, under which said sum of money was received by said defendant, as aforesaid, it was understood and provided, and said trust was upon the express condition, that the same might be terminated by this plaintiff, on or after July 10, 1866, at his election ; that heretofore and on or about the day of February, 1886, this plaintiff caused due notice to be given to the defendant of his election to terminate said trust, and demanded payment to him of the aforesaid sum of $5,000.

The answer denied each and every allegation of the complaint.

The plaintiff, on the trial, gave in evidence a certain paper which began with a form of a resolution. Then followed, ‘‘New York, June 14, 1866. Received of R. W. Milbank $5,000 and also certificate for shares, &c., the said monejr and stock to be returned to said Milbank, in case the resolution above shall not be passed and take effect before the 10th of July next. It being understood and agreed that said Milbank shall have the right at his election in case said resolution shall pass and take effect before the said 10th of July, to purchase back the said stock, &c., “ signed Morgan Jones ; ” and at the end was “I assent to and join in the above understanding and agreement. R. W. Milbank.”

The plaintiff examined a witness who gave testimony intended to show that the witness in behalf of the plaintiff, demanded of the defendant in February, 1886, the five thousand dollars. It was also proved that the resolution did not take effect before the 10th of July, 1866.

It will be perceived that the plaintiff failed to make the case, averred in the complaint, in point of fact. He put in evidence an agreement which was not a declaration of any trust and did not contain an express condition that the plaintiff might terminate the trust, The supposed obligation of the defendant to return the money did not rest upon the will of the plaintiff, but upon the fact -of the resolution taking effect before 10th July, 1866.

The defendant did not point out this variance, but proceeded to meet the case as, or as plaintiff might claim it was made, outside of the pleadings. It might be claimed that after the demand the defendant held the money for the plaintiff. The defendant then offered to show that the object of the transsaction, as shown in plaintiff’s case, was illegal, and that it was made to secure from defendant lobbying services. The objection to this proof, and which was overruled by the court, was that such a defence had not been pleaded.

I "do not think such an objection is good when the plaintiff will recover if he succeed upon a case not stated in the complaint, but upon one that first appears in the evidence. ■

Nor do I think it should be sustained when, whether competently or not, but in fact, the plaintiff places himself upon a trust, specifically so called, and resulting from antecedent occurrences, although not said so to result. The plaintiff chooses to affirm that a trust existed, meaning to give the facts that would prove the existence of the trust. The defendant should have the same kind of right to deny the existence of the trust, meaning to give in evidence the existence of facts which would show that no trust can in fact exist.

I therefore think the judgment should be affirmed.

Tkuax, J. (concurring).

I am of the opinion that it appeared on the plaintiff’s own showing that the five thousand dollars was given to the defendant for the purpose of procuring the passage of a resolution by the Common Council of the city of New York.

In the words of Mills v. Mills, 40 N. Y. 543, it was not suggested that the defendant was a professional man, whose calling it was to address legislative committees. He was simply to ask of the Common Council the passage of the resolution that was offered in evidence by' plaintiff. Such a contract is void as against public policy.

At the close of plaintiff’s case the defendant moved to dismiss the complaint on the ground that no valid trust had been established, and that' the alleged trust agreement was void, because it was made for the purpose of influencing'legislation, that is, the action of the Common Council. This motion should have been granted. It was denied and subsequently both parties offered evidence.

It appeared from the cross-examination of the defendant, who was called as a witness in his ;own behalf, that he was a plumber. Now if we strike out all the testimony to which the plaintiff objected we have this state of facts: the plaintiff deposited with the defendant, a plumber, five thousand dollars in cash and certain stock, which money and stock was to be returned to plaintiff if the resolution above referred to was not passed so as to take effect before a certain day, and that it was not passed so as to take effect before the time fixed.

This evidence did not show the cause of action set forth in the complaint, and the defendant’s motion to dismiss the complaint, made at the close of the case, should have been granted. Mills v. Mills, 40 N. Y. 543.

This view of the case renders it unnecessary to discuss the interesting question of pleading suggested by the exceptions taken by the plaintiff on the trial.

I concur with the chief judge in affirming the judgment and order, with costs.

Feeedman, J. (concurring.)

This action was brought to recover from, the defendant a certain sum of money with interest.

The complaint states that the sum of $5,000 was in June, 1866, received by the defendant, and that i't has ever since been held by him in trust for the plaintiff; that the conditions of the trust were such as to allow the plaintiff to terminate it at his election at any time thereafter; that in February, 1886, the trust was so terminated by a demand for the payment of the principal and accrued interest, and that the defendant refused payment.

The answer contains a general denial.

At the trial evidence was adduced by both parties, and the jury found for the defendant.

The principal question presented by plaintiff’s exceptions is whether, under the answer containing a general denial only, it was competent for the defendant to establish, as an affirmative defence, the illegality of the contract sued upon. This the defendant was permitted to do against the repeated objections and exceptions of the plaintiff.

In approaching the determination of this question it may be conceded, at the outset, that under the system of practice prevailing at common law, the evidence would have been admissible under the general issue, for, under the general issue in assumpsit, anything was admissible which showed or tended to show that the plaintiff never had a cause of action.

So, it may be conceded, that under a general denial in an answer in an" action on contract, the defendant may, under the Code as well as at common law, urge that plaintiff’s evidence shows that no valid contract was made, and that for that reason he is entitled to a dismissal of the complaint. Cary v. Western Union Tel. Co., 20 Abb. N. C. 333; Russell v. Burton, 66 Barb. 539; Oscanyan v. Arms Co., 103 U. S. 261.

But it is quite another thing for a defendant to introduce, under a general denial, affirmative proof of illegality in order to overcome a contract which, on plaintiff’s showing, either appears to be valid or presents a question for the jury as to whether or not it is valid. In such a case the defence of illegality as an affirmative defence is now*matter which, under the Code, must be pleaded in order to be proved. Honegger v. Wettstein, 94 N. Y. 252; Goodwin v. Massachusetts Mut. Life Ins. Co., 73 Ib. 480; Cummins v. Barkalow, 1 Abb. Ct. of App. Dec. 479; Codd v. Rathbone, 19 N. Y. 37; Mech. Bank v. Foster, 44 Barb. 87; O’Toole v. Garvin, 1 Hun, 92; Haywood v. Jones, 10 Ib. 500; Meyers v. Dorman, 34 Ib. 115; May v. Burras, 13 Abb. N. C. 384; Boswell v. Welshoefer, 9 Daly, 196.

For the same reason it has been repeatedly held by this court that, when the answer admits the making and the existence of the .contract sued upon, and contains no allegations apprising the plaintiff that the nullity of the contract is meant to be relied on, the invalidity of the contract cannot be raised under the answer. Schreyer v. The Mayor, &c., 39 N. Y. Super. Ct. 1; Stafford Pavement Co. v. Monhemier, 41 Ib. 184.

For the foregoing reasons I am clearly of the opinion that the defendant should not have been permitted to show affirmatively, as a part of his case, that the contract was illegal on the ground that it was against public policy.

The opinions expressed by my associates have satisfied me, however, that the said error does not help the plaintiff, because his own proof does not sustain the cause of action alleged in the complaint, and because, irrespective of the evidence erroneously admitted, the illegality of the contract sufficiently appears. From these considerations it follows, either that the complaint should have been dismissed, or that, irrespective of the evidence erroneously admitted, a verdict should have been directed in defendants’ favor.

. The judgment and order should be affirmed with costs.  