Brinkman v. Eisler

The contract sued upon was for the erection of an awning on the Bowery, a public street, highway and thoroughfare in the city of New York, and across the sidewalk thereof. The erection of such awnings is expressly prohibited by an ordinance of the mayor, aldermen and commonalty of this city, which was read in evidence. By § 85 of the consolidation act, " all persons offending against any ordinance passed by the common council shall be deemed guilty of a misdemeanor and be punished, upon conviction, by a fine,” etc. Hence, any attempted erection of an awning across the sidewalk of the Bowery is an illegal act. The plaintiff did attempt to erect such an awning, and was several times interrupted by the police, and it was never, in fact, completed. Hpon the trial the case was allowed to go to the jury, who found a verdict in plaintiff's favor for the amount claimed, with several deductions. I think it was error to permit the jury to pass upon the case, and I am of opinion that the plaintiff should have been non-suited. Where a person agrees to do an unlawful act, and incurs expense, he cannot recover either on the illegal contract, or for a quantum meruit. The law leaves the parties where they have placed themselves. Materne v. Hor witz, 101 N. Y., 469 ; 1 City Court Rep., 167, and cases cited.

For these reasons, the verdict will be set aside, and a new trial granted, with costs to abide the event.