Bettinger v. Bridenbecker

Morgan, J.

The plaintiff’s complaint charges that prior to February, 1862, she had a just and valid claim against Daniel F. Dygert for damages, which he settled at $500; that he was to pay $50 down, and the residue to he placed in the hands of the defendant for her use and benefit. That Dygert paid her the $50, and paid to, and placed in the hands of the defendant, $450, for her use and benefit-, which sum the defendant agreed to keep and hold as her trustee, and to invest the same for her, and pay over to her annually the interest and income, and to pay her the principal sum on the 15th day of July, 1864; which he neglected and refused to do, although specially requested.

The answer of the defendant alleges that prior to February, 1862, Dygert was arrested and held to bail for the commission of a felony, viz., in aiding the procuring of an abortion of a quick child upon the person of the plaintiff; and that Dygert paid the plaintiff $50, and ptit $450 in the defendant’s hands to be paid to her, in consideration, among other things, that the criminal prosecution then commenced should be abandoned.

On the trial, the plaintiff" produced in evidence an agreement in writing, bearing date February 1, 1862, signed by the defendant,-by which he acknowledged the receipt of $450 from Dygert to be held by him upon certain trusts therein mentioned, or until • the same was revoked. This agreement promised that on the 15th day of July, 1864, the said sum of money should be paid to the said plaintiff as her own, provided that before that time no prosecution should in any manner and form be instituted against the said Daniel F. Dygert, on account of any alleged injury to the person or.character of the plaintiff, either civil or criminal, or in her own behalf, or in behalf of the people of the State of Rew York. And also provided that the. plaintiff should also execute a release of all demands.

The plaintiff also proved that she executed a release, and thereupon demanded the money of the defendant, July .15, 1864. The defendant then proved that Dygert was arrested January 2, 1862, and held to bail upon a criminal warrant charging him with the criminal offense of assisting in procuring an abortion of a quick child upon the person of the plaintiff, at Ilion, July 5,1861. The defendant then proved, by Thomas Richardson, the execution of another agreement by the defendant to Dygert, upon the same subject, written at the same time, which contained a further provision that if any action, either civil or criminal, for the causes aforesaid, should be commenced on or •before the 15th of July, 1864, either by the people or the plaintiff, then and in that case the defendant engaged to repay the money to Dygert. The plaintiff objected to the reception of this agreement in evidence, but the objection was overruled, and the plaintiff" excepted.

The plaintiff produced as a witness Jacob Wendell, who was present at the execution of the two agreements, and offered to prove by him that the money mentioned in the agreement was not in fact paid to compound a felony, but that the sum was paid in settlement of the plaintiff’s claim against the said Dygert, for her private damages, for breach of promise of marriage and seduction. This offer was overruled by the court, to which.the plaintiff excepted.

The defendant’s counsel then moved for a nonsuit, upon the ground that the agreement upon which the action was brought was illegal and void, as against public policy. Which motion was granted by the judge, and the plaintiff’s counsel excepted to the decision.

It seems to me that the case is too plain for argument; arid that nothing can be necessary to be said to show that one indispensable condition upon which the money is to be paid to the plaintiff, was the successful suppression of criminal proceedings which had already been instituted against Dygert. By the 15th day of July, 1864, it would be too" late to indict him, for the three years’ limitation would have expired, the alleged offense having been committed at. Ilion on the 5th day.of July, 1861. This was certainly a contract which tended to obstruct and interfere with the administration, of public justice, and of the laws, and it is unnecessary to cite authorities to prove that it is utterly void. Ho valid trust can be founded upon an interest derived from an illegal contract, or established in contravention of the general policy of the law. ' (Hill on Trustees, 45.) The claim that the contract had been executed cannot be supported. This suit is brought to enforce it, and for that reason the court cannot aid the plaintiff, although it would not by any means assist the defendant, if its aid should become necessary to enable him either to execute or to defeat the trust.

It is also quite apparent that the plaintiff could not be permitted to prove, in opposition to the express stipulation of the agreement, that it was not a part of the understanding that criminal proceedings should be abandoned.

In my opinion, it is too plain to require farther examination. (Porter v. Havens, 37 Barb. 343.) There was nothing in the second agreement proved that changed the character of the transaction, and the objection to the reception of that' in evidence was a matter of no consequence whatever. Indeed the action cannot be sustained upon any view of it, unless we are prepared to shut our eyes to the clearest evidence of a corrupt agreement to suppress a criminal prosecution.

The motion for a new trial should be denied.

Bacon, J., concurred.