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and 140 New York State Reporter owners of buildings occupied exclusively as dwellings situate within the territory mentioned in the statute, so that the contract in question falls directly within the condemnation of the rule as above stated. So far as we have been able to discover, the validity of an agreement precisely like the one here involved has not been passed upon by the courts of this state, but many similar agreements and which upon principle are not distinguishable from the one at bar have been declared void by the courts of this and other states because against public policy.

Dean v. Clark, 80 Hun, 80, 30 N. Y. Supp. 45, was a case brought to recover upon an indemnity bond under seal, given to the plaintiff, and which provided, in substance, that, if the plaintiff would sign a consent that the town in which he resided and in which he was the owner of property subject to taxation might bond itself in aid of a certain railroad (the consent of a certain per cent. of taxpayers in said town being necessary in order to authorize such bonding under an act of the Legislature), the defendant agreed to indemnify and save the plaintiff harmless against all taxes which might be assessed against his property as a result of such bonding. The court held unanimously that such agreement was void, against public policy, because it had a tendency to influence the plaintiff's action, and hence injuriously affect public interests. The court said (page 85 of 80 Hun, page 48 of 30 N. Y. Supp.):

“The question submitted to the taxpayers was one of great public importance to the town. Plaintiff's action in the matter affected not only himself, but other taxpayers. It affected those citizens who refused to make any request to the commissioners, and also others who did consent to the bonding of the town, but were induced to do so by the action of the plaintiff. We think public policy required the unbiased and uninfluenced judgment of the several taxpayers on the question submitted to them pursuant to the statute. The action of the taxpayers in determining whether the $100,000 should be loaned might be deemed similar to an act of legislation. The Legislature, instead of passing on the question of the loan, submitted it to the taxpayers of the town, a majority of whom voted in its favor. By the bond of indemnity, the obligors agreed to pay plaintiff the amount he should be taxed in consequence of the proposed loan. Such a bond naturally and necessarily affected his judg. ment as to the propriety and necessity of the loan. It was like a bribe to him with a view of affecting his action as a citizen on a matter affecting the public interest of the town. The question submitted to the taxpayers was whether the taxable property of the town should be mortgaged, so to speak, to secure a loan of $100,000 for the purpose of aiding the construction of the Lebanon Springs Railroad. Plaintiff, as a citizen, was called upon to vote upon the proposed measure, which, as we have said, was of great importance. The agreement of the obligors to indemnify him from the payment of taxes to result in consequence of his vote and that of the other taxpayers was very much like an undertaking to pay him $1,000 for his vote. By such a proce dure a minority of the taxpayers of any town could have induced a majority to vote for the bonding of the town under the act, when the judgment of the majority of such taxpayers, if uninfluenced, was opposed to the project. We think public policy required that the vote of each taxpayer of the town of New Lebanon on the proposal to bond it for the benefit of the Lebanon Springs Railroad should be uninfluenced, and that hence the promise of the defendants to indemnify the plaintiff against taxes resulting from his vote was not enforceable.”

We have quoted the language of the court thus at length because we consider it most admirably states the law applicable to such cases

under such circumstances, and because there is hardly a sentence which does not apply with equal force in condemnation of the agreement which is sought to be enforced in the case at bar.

Story in his work on Equity Jurisprudence (volume 1, § 259), in considering the question of constructive fraud, says:

“Some of the cases under this head are principally so treated, because they are contrary to some general public policy, or to some fixed artificial policy of the law. Others, again, rather grow out of some special confidential or fiduciary relation between all the parties, or between some of them, which is watched with especial Jealousy and solicitude, because it affords the power and means of taking undue advantage or of exercising undue influence over others."

Some of the many decisions decided by the courts of sister states may be of interest. In Smith v. Applegate, 23 N. J. Law, 352, the holding is stated in the headnote as follows:

(1) A promissory note given by the applicants for a public road to a caveator against such road, in consideration of the caveator withdrawing his opposition to the road, and permitting the return to be recorded, is void, being founded on an illegal consideration. (2) A contract on the part of the caveator to withdraw his opposition to the laying out of a highway is against the policy of the law, and therefore void.”

buttinat a direct Md. 45401d. In

In Noyes v. Day, 14 Vt. 384, it was held that a forbearance to bid at public auction, for the sale of the support of the paupers of a town, is a good consideration for a note given for such forbearance. But such a transaction is contrary to public policy, and the note is therefore void. In Jacobs v. Tobiason, 65 Iowa, 245, 21 N. W. 590, 54 Am. Rep. 9, it was held that an agreement to abandon the prosecution of preceedings for the establishment of a public highway in consideration of money to be paid therefor was void. In Maguire v. Smock, 42 Ind. 1, 13 Am. Rep. 353, it was held that an agreement guarantying to pay a sum of money to certain persons, provided they will petition the common council of a city for street improvements, was void. In Howard v. Baltimore First Independent Church, 18 Md. 451, it was held that an agreement was void whereby, for a direct or indirect consideration, some of the owners of abutting land were induced to sign a petition for grading and paving a street, where an ordinance required such petition to be made in good faith and all the subscribers to bear their proportion of the burden. In St. Louis v. Meier, 77 Mo. 13, it was held that an agreement between a landowner and commissioners appointed to open a street, by which the former consents to the opening of the street provided no benefits shall be assessed against him, is void. These and a large number of other similar agreements which have been held to be void by the courts of different states are referred to in 9 Enc. of Law and Procedure, p. 485; but such decisions only lend emphasis to the proposition that any contract is void which contemplates the sale of the assent or the withholding of consent by an individual, the exercise of which right is given by the Legislature, and which may be the basis of or a prerequisite to governmental action. By provisions such as are here involved, the Legislature of the state seeks to ascertain by an honest expression of the people of a certain locality whether or not certain other provisions of

and 140 New York State Reporter the statute shall have effect and be applicable to them. As before suggested, it is inconceivable that such expression may legitimately be made the subject of sale and which, notwithstanding, must control the action of the state in that regard.

There ought not to be any dispute as to the scope and purpose of the alleged agreement which is the basis of the counterclaim sought to be interposed by the defendant. The state of New York, in order to determine whether or not a liquor tax certificate should be issued to the defendant authorizing him to sell liquor in the locality in question, asked the advice of the owners of buildings occupied exclusively as residences within a certain radius in such locality as to whether or not liquor should be permitted to be sold therein. Can such advice, as represented by the consents of such owners, be bought, and a contract for such purchase be enforced in our courts? The proposition is abhorrent to all sense of justice, and, as it seems to me, is not supported by authority. We wish to be understood as holding most emphatically that the agreement under which the defendant seeks to substantiate his counterclaim is void because against public policy, and that all similar agreements which have for their purpose the influencing of individual opinion as to whether governmental action should or should not be taken in a particular instance are void for the same reason, and are therefore not enforceable in our courts.

It follows that the judgment and order appealed from should be affirmed, with costs.

Judgment and order affirmed with costs. All concur, except ROBSON, J., who dissents.


In an action for personal injuries, where plaintiff, a young married woman 29 years old, in good health, about six months advanced in pregnancy, sustained injuries from which she suffered pain for twelve days, when she was delivered of twins, after which she was confined to her bed for two weeks, and to her room for six weeks more, and to the house for five months more, and the injuries interfered with her comfort and capacity to do housework, and she continued to have pain, and was under medical treatment up to the time of the trial, 16 months after the accident, and the results of her injuries would be permanent to some extent, and she would continue to suffer some pain and physical impairment, a verdict of $3,375 is not excessive.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, $$ 357396.]

Action by Anna Sparks against the city of North Tonawanda. Judgment for plaintiff. On motion for new trial, motion denied.

Norman D. Fish, for plaintiff.
Lewis T. Payne, for defendant.

POUND, J. Plaintiff, a young married woman, fell on a defective sidewalk on Oliver street, in the city of North Tonawanda, on the 14th

day of May, 1906. At the time of the accident she was 29 years of age, in good health, the mother of three children. The evidence tends to establish that, as a result of her fall, plaintiff sustained injuries, and that, as a result of such injuries, from the time of the accident she suffered pain for 12 days, when she was prematurely delivered of twin children, she being about six months advanced in pregnancy; that after such miscarriage she was confined to her bed for two weeks, then to her room for six weeks; that it was five or six months after that before she got out of the house; that she continued to have pain in her right side, and still continues to suffer pain and physical impairment which interfere with her comfort and her capacity to do housework; that she has been and is still under medical treatment for internal injuries resulting from the accident and the consequent miscarriage. The evidence of plaintiff's physicians justifies the conclusion that the results of her injuries will to some extent be permanent, and that she will continue for some time by reason thereof to suffer some pain and physical impairment. The jury had the opportunity to witness plaintiff's appearance as indicative of health or otherwise, and it tended to confirm the evidence of the plaintiff and her physicians.

I fail to discover any reason for holding that the verdict is excessive, and the motion for a new trial must therefore be denied.

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(Supreme Court, Appellate Division, Second Department. October 4, 1907.) APPEAL-RIGHT TO REVIEW-PERSONS ENTITLED.

A county treasurer, not a party to an application for an allowance for counsel fees for defending one charged with murder, cannot appeal from the allowance constituting, under Code Crim. Proc. $ 508, a charge on the county, payable on the certificate of the justice presiding at the trial. Appeal from Special Term, Suffolk County.

Martin T. Manton, appointed to defend James W. Simpson, on trial for murder in the first degree, applied for an allowance for fees and expenses. From an order making the allowance, Henry S. Brush, as county treasurer, appeals. Dismissed.

Argued before HIRSCHBERG, P. J., and HOOKER, RICH, MILLER, and GAYNOR, JJ.

Timothy M. Griffing, for appellant. Martin T. Manton, in pro. per.

HIRSCHBERG, P. J. The respondent was duly assigned as counsel to defend James W. Simpson, who was indicted in the county of Suffolk for the crime of murder in the first degree. The accused was thereafter tried and acquitted. Subsequently an application was made to the Supreme Court at Special Term, by the respondent, upon notice to the district attorney for an allowance of counsel fees and his personal and incidental expenses. The application resulted in an order granting to the respondent an allowance in the sum of $500 and certain items of disbursements, including expert fees.

and 140 New York State Reporter By section 308 of the Code of Criminal Procedure, the allowance made to the counsel becomes a charge upon the county, and the order requires the appellant, as county treasurer, to pay the sum allowed. That official was not a party, however, to the motion, nor has he been substituted or made a party in any way. I do not think he has any connection with the case, which makes him an aggrieved party within the meaning of the provisions of the Code of Civil Procedure, or that he has any standing authorizing him to take this appeal.

The appeal should be dismissed, with $10 costs and disbursements. All concur.

(121 App. Div. 441.)


(Supreme Court, Appellate Division, Second Department. October 4, 1907.) LANDLORD AND TENANT-USE OF PREMISES—EVICTION-ACTION FOR DAMAGES.

Plaintiff's husband rented certain premises from defendant S. as agent of a third party, and remained in possession until May 1, 1905, having given notice some time prior to that date that he did not desire the premi. ses after that date. Plaintiff, who was not living with her husband at the time, remained after the expiration of the husband's tenancy. She negotiated with defendant for a lease of the premises, but no agreement was effected between them. Held, that plaintiff was wrongfully in possession, and could not recover damages for her eviction, she having left upon her own motion after the removal of her goods by the defendant. Appeal from Trial Term, Nassau County.

Action by Annette Butler against George S. Smith and another to recover for forcible eviction from certain premises. From a judgment dismissing the complaint and an order denying plaintiff's motion for a new trial, plaintiff appeals. Affirmed.


Henry P. Keith, for appellant.
Gilbert W. Minor and Philo P. Safford, for respondents.

WOODWARD, J. The plaintiff brings this action to recover damages, on the theory that, being a tenant in peaceable possession of certain premises, she was forcibly evicted from the same by the defendants. The facts developed on the trial showed that the plaintiff's husband rented the premises from the defendant Safford, as agent of a third party; that he was in possession of the same, under his lease, until the 1st day of May, 1905; that some time prior to that date the said plaintiff's husband had given notice that he did not desire the premises after that date. Plaintiff was not living with her husband at the time of the alleged eviction, but was in possession of the premises, because she and her children had not removed from the same at the expiration of the husband's tenancy. There had been some negotiation looking to the renting of the premises by the plaintiff, but the latter had refused or neglected to comply with the terms fixed by the defendant Safford, and the latter had returned a certified check for $35 tendered in payment of one month's rent, and had notified the plaintiff that he would not consent to her tenancy except upon condi

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