Heit v. Preston

Appeal from an order of the Supreme Court at Special Term, entered June 7, 1957, in New York County, which denied a motion by defendants Sherman R. Wiesen and another for a dismissal of the first cause of action in the complaint. Appeal from an order of said court which denied a motion by defendants Harry Preston and others for a dismissal of the first and second causes of action in the complaint.

Memorandum by the Court. The orders of Special Term should be affirmed. Unless the illegality of an agreement is evident from the pleadings, the claim of illegality should be pleaded as a defense (Morgenstern v. Cohon, 2 N Y 2d 302). An intention to violate the law is not to be assumed, nor should an agreement be adjudged illegal in advance of proof or in the absence thereof, where it is capable of a construction which will uphold it (Lorillard v. Clyde, 86 N. Y. 384; Friedman v. State of New York, 242 App. Div. 314, 317). The claim of the illegality of this contract should await the development of the facts upon a trial (Foster v. White, 248 App. Div. 451; Gardner v. Pope, 283 App. Div. 940).