Citation Numbers： 269 A.D. 1062, 59 N.Y.S.2d 148, 1945 N.Y. App. Div. LEXIS 5269
Filed Date： 12/28/1945
Status： Precedential
Modified Date： 10/28/2024
In an action to recover jewelry delivered by plaintiff to defendant, or the value thereof, order denying defendant’s motion for summary judgment affirmed in the exercise of discretion, without costs. The determination of the question of legality should await all the proof to be adduced upon the trial. Hagarty, Carswell, Johnston and Lewis, JJ., concur; Adel, J., concurs for affirmance insofar as the order denies the motion to dismiss the first and third causes of action alleged in the complaint, but dissents insofar as the order denies the motion to dismiss the second cause of action, and votes to grant the motion to dismiss in that respect, with the following memorandum: Defendant is entitled to judgment dismissing the second cause of action. (Rules Civ. Prac., rules 113, 114.) Accepting plaintiff’s construction of the allegations of that cause, he agreed to and did provide the means to pay the Portuguese consul about $30,000, merely to obtain visas permitting travel from Bayonne, France, to Portugal. Such an agreement is clearly illegal and contrary to public policy. Illegal agreements may be malum in se or malum prohibitum. The law will neither enforce agreements malum in se nor order restitution of any moneys paid by a party thereunder. In some few cases restitution of moneys paid under agreements malum prohibitum has been ordered where the agreements had not been fully performed or executed. The agreement in suit, being malum in se, is contrary to public policy, and though it be unexecuted, the law will neither enforce its terms nor direct restitution of moneys paid thereunder.