Brinkman v. Eisler — 40 N.Y. St. Rep. 865

Majority

p. 865

Sebastian G. Brinkman, App’lt, v. Henry S. Eisler, Resp’t.

(City Court of New York, General Term,

Filed October 15, 1891.)

Headnote

■Contbact—Unlawful act.

Plaintiff contracted to erect an awning over the sidewalk in front of defendant’s premises, but was preventing from completing it by the police. Held, that such structure being illegal and in the nature of a nuisance, the contract was one for the performance of an unlawful act, and that plaintiff could not recover either under the contract or upon a quantum meruit.

Appeal from order setting aside the verdict of a jury and granting a new trial.

The action was brought to recover $200.89 as the value of

p. 866

work, labor and services performed and materials furnished. The answer admitted the performance of the work and furnishing of materials, but alleged that they were performed and furnished under an express contract to erect an awning in front of defendant’s premises, for which $155 was to be paid on completion, and that the said awning was never completed. It also alleged that the contract was against public policy and illegal, as it was for the erection of said awning in a street of New York city, and in violation of law and the ordinances of said city. It appeared that plaintiff’s work.was stopped by the police.

A. M. & G. Card, for app’lt; Benno Loewy, for resp’t.

We agree with the learned judge who tried the cause, that 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, for the law leaves the parties where they placed themselves. The authorities hold that a structure such as the plaintiff undertook to erect is illegal, and in the nature of a nuisance. See Trenor v. Jackson, 15 Abb., N. S., 125, and on the subject generally see Am. R. T. Co. v. Hess, 125 N. Y, 641 ;, 36 N. Y. State Rep., 252; Lahr v. Met. E. R. R. Co., 104 N. Y., 268 ; 4 N. Y. State Rep., 340; Story v. N. Y. Elevated R. R. Co.,. 90 N. Y., 122 ; Callanan v. Gilman, 67 How. Pr., 464 ; S. C., 107, N. Y., 360; 12 N. Y. State Rep., 21; Clifford v. Dam, 81 N. Y., 52 ; Knowlton v. Congress & Empire S. Co., 57 id., 518; Materne v. Horwitz, 101 id., 469 ; Foley v. Speir, 100 id., 552 ; Goodrich v. Houghton, 29 N. Y. State Rep., 905; Arnot v. Pittston Coal Co., 68 N. Y, 558 ; Pease v. Walsh, 39 N. Y. Super Ct., 514 ; McDonough v. City of Brooklyn, 1 W. Dig., 390 ; Archer v. McDonald, 36 Hun, 194 ; Booth v. Mill, 60 N. Y, 487 ; N.Y. C. & H. R. R. Co. v. Standard Oil Co., 87 id., 486; Tompkins v. Dudley, 25 id., 272; Farrell v. The Mayor, 20 N. Y. State Rep:, 12; Anderson v. The Equitable G. L. Co., 12 Daly, 462 ; Cohen v. The Mayor, 113 N. Y, 532 ; 23 N. Y. State Rep., 509.

For these reasons and those assigned by the trial judge on making the order appealed from, the order must be affirmed, with, costs.

Van Wyck and Newburger, JJ., concur.