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N. Y. Superior Court.-Wall and others v. Charlick and others.

[Special Term.]

Before Mr. Justice MASON.

WILLIAM WALL and others v. OLIVER CHARLICK and others.

FRAUD_AGREEMENT INCONSISTENT WITH PUBLIC POLICY.

The defendant Charlick agreed to use his influence with the Common Oouncil of the city of

New-York, to obtain for the plaintiff a lease of the Peck slip and Grand street ferries to Wil. liamsburgh, and in case of his success was to receive the sum of $2,000. He accordingly petitioned the Common Council in his own name, together with the plaintiffs, holding himself out as one of the parties interested, and obtained a lease as prayed for to himself and the plaintiffs, which he duly signed and sealed; having, all the while, no interest in the matter, except his contingent fée, and being indemnified by the plaintiffs against all responsibility on his covenants. Held, that the agreement was void, both as being a fraud on the Common Council and as being inconsistent with public policy and sound morality.

The facts of this case sufficiently appear in the opinion of the learned judge.

C. B. Moore, for the plaintiffs.
James T. Brady, for the defendants.

MASON, J.—The complaint in this cause sets forth that in the summer of the year 1848, the plaintiffs employed the defendant Charlick as their agent, to obtain from the Common Council of the city of NewYork, a lease of the necessary docks and slips, in the said city, for the purpose of the Peck Slip and Grand Street Ferries to Williamsburg, and they agreed to pay him for his time and services in the premises the sum of two thousand dollars, in case the application should be granted. Thereupon the plaintiffs and Charlick presented a petition to the Cominon Council for that object, Charlick signing it first, and holding himself out as a prominent party to the application. The petition was referred to the Ferry Committee of the Board of Aldermen, who unanimously reported in favor of granting it, and in their report stated that they had been induced to look with more than ordinary favor upon the application, on account, among other things, of the responsibility of the parties making it. And they recommended that a lease of the Ferries for ten years be granted to Oliver Char-. lick ahd the plaintiffs, upon certain terms. The report was adopted by both Boards, and received the signature of the Mayor; and the lease was ordered to be granted upon the applicants signing an acceptance of the terms, which was done, and the lease was thereupon duly signed and sealed; Charlick heading the signature to the acceptance, and being named first among the parties of the second part to the lease. During all this time, however, he was a mere agent, having no interest in the matter, and holding from the plaintiff an agreement to indemnify him against loss or damage by reason of his having signed the lease.

N. Y. Superior Court.-Wall and others v. Charlick and others. After the lease had been authorized and the acceptance signed as above mentioned, the plaintiffs considering, as they say in their complaint, that Charlick had substantially earned the stipulated compensation, paid him the $2,000.

The complaint then alleges that the leases, though duly signed and sealed by the respective parties, had not been delivered, but that the delivery to them, the plaintiffs, had been prevented by the interference of Charlick ; whether, after he had pocketted the $2,000 he informed the Comptroller of his real situation in regard to the transaction or not, does not appear. It does appear, however, that the Comptroller felt himself justified in withholding the lease from the plaintiffs, and referring the matter to the Board of Aldermen, although he had been directed by the committee having the matter in charge to de ver it to a majority of the lessees, and they had all, excepting Charlick, united in a request for its delivery.

The plaintiffs now ask the court to restrain Charlick from interfering with their rights under the lease, and from doing any act to prevent them from obtaining the actual custody and possession of the lease, and from endeavoring to disturb or prejudice their title, or from availing himself of the circumstance that his name is inserted as one of the lessees, to do any act whereby they may be further molested in their rights. They also pray that Mr. Waters, who was Comptroller when the suit was commenced, may be ordered to deliliver the lease to them, and for further relief.

To this complaint the defendant Charlick demurred, and assigned several causes of demurrer.

It is impossible for the plaintiffs to succeed in this suit. Without noticing the other questions raised by the demurrer and discussed at the hearing, the nature of the agreement between the plaintiffs and the defendant Charlick, presents an insurmountable obstacle to a recovery. It is a fact which, though not averred in the complaint, can yet be judicially noticed as matter of history, that this defendant had for several years previous to the agreement been a prominent member of the Common Council

, and for a portion of the time President of the Board of Aldermen. Although not a member at the time of the transaction mentioned in the complaint, yet from his long previous service, and great knowledge and experience in the municipal affairs of the city, he would naturally have considerable influence with the members of a new Board. This personal influence he agreed to sell to the plaintiffs for the sum of $2000, payable only in the event of his succeeding in the object they had in view. And in order the better to gain the desired end, he falsely represents himself to the Common Council, with the knowledge and assent of the plaintiffs, (for they united with him in the representation,) as being personally interested and engaged in the application for the ferries, and as being the prominent man in it, whereas in truth the only interest he had was the promised reward. This representation was an imposition upon the Common Council, and would be sufficient to authorize them lo withhold the lease, on the ground of fraud. It is important in the N. Y. Superior Court.-Wall and others v. Charlick and others. management of franchises of this nature, that they should be in the hands of persons of known standing and respectability, so that the duties required of them should be faithfully and punctually performed. Perhaps there is no branch of the public service in which the character and qualification of the persons who are to manage it should be more thoroughly looked into. The comfort and convenience of the great mass of the community are more or less concerned. It is evident from the course pursued by the plaintiffs and Charlick, that they deemed it highly important, if not essential to the success of their application, that Charlick should appear to the Corporation as a party interested, and the obtaining of the lease was doubtless owing in a great measure to this false appearance.

In the case of Lord Howden v. Simpson, (10 Adolphus & Ellis, 793,) the Court of Queen's Bench held, that the keeping back or concealing from the legislature by the applicants for a railroad charter, any fact which might reasonably be expected to have an influence on the judgment of the legislature, in relation to the act prayed for, was a fraud on the legislature, and that no private contract for compensation in aiding or being a party to such concealment could be enforced. It is true that the judgment in that case was reversed in the Court of Exchequer Chamber, but it was on the ground that it did not appear that such concealment entered into the agreement of the parties. The whole court admitted that if it had, the agreement would have been fraudulent and void.

The present case, however, is not one of mere concealment, but of direct misrepresentation, made by all the parties. They all, by the signature to the petition, to the acceptance of the terms of the lease, and to the lease itself, falsely held out and asserted that Charlick was one of the parties interested, and this false pretence appears to have been the basis and ground work of their whole plan. A claim based upon such misrepresentation can surely find no favor in a court of justice.

But independently of the question of fraud, the agreement itself, between the plaintiffs and Charlick, was contrary to public policy and sound morality. The fact that the sum of $2000 was contingent upon the defendant's obtaining the lease, was a strong inducement to improper tampering, and using secret and extraneous influence with the members in their disposition of this important franchise. It is true that nothing of this sort appears in the case, but it is sufficient condemnation of the contract, that its tendency was to tempt the party to use such influence. Unfortunately, legislative bodies and other guardians of the public interests, have sometimes been charged with being governed by other considerations than a single regard to the public interests ; but we trust the day is far distant when our courts will lend their aid to contracts or bargains, having for their express object the bringing personal influence and private considerations to bear upon legislators in matters of public concernment. It is creditable to our State that no case like the present is reported in any of our numerous books of reports. If bargains of this kind have been made,

N. Y. Superior Court.-—Wall and others v. Charlick and others. . no one, as far as my information extends, has heretofore had sufficient courage to invoke the assistance of the court to enforce them. But if authority is wanting on this point, we are not without it in the reported decisions of our sister States. The

Court of Appeals in Kentucky, in the case of Wood v. McCann, (6 Dana, 366,) laid down the broad proposition that all contracts like the present, are immoral and void ; and the Supreme Court of Pennsylvania, in Clippinger v. Hepbuugh, (5 Watts & Sergt. 315,) stated the doctrine on this subject with great clearness and force. That was an action on a sealed note by Heppinger to pay Hepbaugh $100 on condition of his succeeding in procuring the passage of a law authorizing Clippinger and wife to sell the real estate devised to his wife and children. The act was passed ; the amount agreed to be paid was small, probably no more than a moderate compensation for Hepbaugh's time and services. The Court of Common Pleas gave judgment in his favor, on the ground that there was nothing in the character of the contract which rendered it any more objectionable than if the service was to be rendered in a court of law, on the trial of a cause, nor had it any tendency whatever to produce improper influence. The Supreme Court, however, thought otherwise, and reversed the judgment. Mr. Justice Rogers, in delivering the opinion of the court, referred to the case of Wood v. McCann, cited above, and remarked that in that case the whole reasoning of the court goes to establish these propositions, which he says cannot be reasonably denied, viz: that the law will not aid in enforcing any contract that is illegal, or the consideration of which is inconsistent with public policy and sound morality, or the integrity of the domestic, civil, or political constitution of a State. That a contract to endeavor to procure the passage of an act of the legislature by any sinister means, or even by using personal influence with the members, would be void, as being inconsistent with public policy and the integrity of our political constitution; and any agreement for a contingent fee to be paid on the passage of a legislative act, would be illegal and void, because it would be a strong incentive to the exercise of personal and sinister influences to effect the object. These are broad and fundamental principles, he adds, to the truth of wbich we subscribe, and which cover the whole ground, on which the case before us rests. To these broad and fundamental principles, I would add my humble yet hearty assent, as holding forth a pure and elevated standard of morality, which the courts should ever seek to cherish and confirm.

Upon the same principle it has been held that a party cannot recover upon an agrement to pay him money in consideration of his using his influence to procure the pardon of a convict. Norman v. Cole, 3 Espin. R. 253; Hartzfield v. Golden, 7 Watts, 152.

The principles just stated apply with great force to the case in hand. It is indeed true that the Common Council is a municipal cor: poration, and not a legislative body, in the ordinary sense of the term; but it is not a mere corporation; it possesses, in many respects, the powers and character of a legislative body, and in the

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VOL. VIII.

N. Y. Superior Court.-Tracy v. Leeland. granting of ferries, it exercises, by delegation from the sovereign power of the State, very high powers, in the proper discharge of which the whole community is interested. And all the reasoning and considerations on this subject affecting legislative bodies, apply to the Common Council with equal force.

From what has been said, it is manifest that if Charlick was before the court calling on the present plaintiffs to pay him the stipulated sum of $2000, he could not recover, on the double ground of the immoral nature of the contract, and of the fraud practiced on the Common Council; and on the same grounds the plaintiffs cannot obtain the assistance of the court, their claim being founded on this immoral and fraudulent contract, and seeking to obtain the benefit of it. There must be judgment for the defendant.

[June Special Term.]

JARED W. Tracy against SARAH A. LEELAND.

HOLDING FEMALE TO BAIL UNDER 179th SEC. CODE.

The concealment, removal and disposal of a Piano by a female, does not subject her to be held

to bail, under the 179th section of the code. A female can be arrested only for wilfully, wantonly, or maliciously injuring property; but not for a detention or conversion of it.

This is an action brought to recover the possession of personal property wrongfully detained. Part of the property claimed, to wit, a rosewood Piano has been concealed, or removed and disposed of by the defendant, so that it could not be found by the sheriff. On due proof of these facts the plaintiff obtained an order of arrest, under which the defendant has been actually arrested. A motion is now made in her behalf, to discharge her upon the ground, among others, that this is not a case in which a female can be arrested.

C. Ward, for the defendant.

C. Tracy, for plaintiff.

MASOŃ J.—The decision of this question depends upon the construction to be given to the 179th section of the code. The 3d subdivision of that section expressly authorizes the arrest of a defendant in cases like the present, but with the proviso that “no female shall be arrested in any action except for a wilful injury to person, character or property. If this case is embraced in either of the exceptions, it must be in the last, a wilful injury to property. But it is difficult to understand how the mere detention or concealment of a piece of furniture is a wilful injury to it. It may be preserved with the utmost care, although kept out of the reach of the plaintiff. Had the defen

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