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Solinger v. Earle

45 N.Y. Super. Ct. 604 13 Jones & S. 604 Court N.Y. Super. Ct. Decision date 1879-06-13 English

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p. 604
DAVID SOLINGER, Plaintiff and Respondent, v. EDWARD EARLE, Impleaded, &c., Defendant and Appellant.
Before Sedgwick and Speir, JJ.
Decided June 13, 1879.

Headnote

In this case the plaintiff sought to recover the amount of a certain note given by him to a creditor of plaintiff’s brother-in-law, to induce said creditor to sign a composition deed, which relief the court on appeal denied him (see ante, 80). Plaintiff, in this motion, asks for a re-argument of appeal.
Gilmour v. Thompson, 49 How. Pr. 198 ; and Comstock v. Hier, Ct. App. MSS.:—Held, not applicable, and distinguished from present case. Maxim, Mb turpi causa, non oritur adño,—applied.
Motion for re-argument after order, of general term reversing the judgment below.
A. R. Dyett, for motion.
Mr. Scott, opposed.

The counsel for appellant bases his motion upon the suggestion, that the general term overlooked, or did not give due effect to the cases of Gilmour v. Thompson, 49 How. Pr. 198 , and Comstock v. Hier, court of appeals, MSS. The cases cited are harmonious with the opinion of the general term in this case. In Comstock v. Hier the fact was, that the plaintiff had an action for his note, and no part of his action rested upon proof of an illegal transaction between him and defendant, in the course of which, he had delivered the note to him. In Gilmour v. Thompson, the plaintiff had a right of action, although the transaction was illegal, because he was the debtor, and so, in the estimate of law, the

p. 605
victim of oppression. In the present case, the plaintiff was a party to the illegal transaction, but not a victim. TTis participation in it was voluntary. He cannot, therefore, avail himself of circumstances that would otherwise show a conversion by defendant. Without proof of the illegal act, the presumption would be that the defendant held the note, by voluntary delivery and value. This presumption could be rebutted only by testimony as to the illegal transaction. But such testimony the law does not allow the plaintiff to give, for a right of action cannot spring ex turpi causa.

Motion denied with ten dollars costs.

Speir, J., concurred.

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