SECOND DEPARTMENT, JULY TERM, 1903. [Vol. 86. obligation, covenant or agreement thereunder, express or implied. Said deeds shall be delivered and exchanged at the office of Frederick Beltz, * * * on or before February 3d, 1902, at 11 a. м.” At this time, in the absence of any statutory interference, or different agreement on the part of Cody, the commission had been earned. He had brought together the parties and they had entered into a contract mutually satisfactory, and under well-established rules he had done all that was necessary to entitle him to his commission. It appears, however, from the evidence that Cody agreed to waive his commission in the event of the failure of this contract by reason of the loan not being secured, and a clause was inserted in the agreement between Mrs. Dempsey and Miss Willmann, that "it is understood that no brokerage is to be paid to any one unless this contract shall be performed." This could not, of course, bind the plaintiff, except in so far as his assignor had agreed to the proposition, but no question is raised on this point. It is conceded that the contract of January 20, 1902, was not consummated on the third day of February, as provided by its terms, but it appears from the evidence that the negotiation thus entered into was continued, and that on the 20th day of March, 1902, the parties, through their respective attorneys, entered into a "Memorandum of modification agreement between Mary E. Dempsey and Florence L. E. Willmann to be annexed and collateral to agreement of exchange of property dated January 20th, 1902, and extended to April 1, 1902," so that it is apparent that in March of that year the defendant recognized the original contract as still in force, and it is conceded that the "modification agreement" which provided for a loan of $35,000 instead of $40,000, with some other incidental matters, was carried out and the transfer made as originally agreed upon. Plaintiff's assignor had clearly at that time brought to the defendant a party ready, willing and able to purchase or exchange his property upon the terms named by the latter, and the authorities all hold that under such circumstances he has earned his commissions. (Grossman v. Caminez, 79 App. Div. 15, 16.) The fact that the contract of January twentieth was not consummated on the third day of February is of no consequence, so long as the contract then entered into was continued in force and modified, and, as modified, consummated. The two agreements are to be read together, and that of App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. January twentieth is to be understood as modified by that of March twentieth, which extended the time of performance to April 1, 1902. The plaintiff's assignor merely agreed to waive his commission if the contract between the parties was not carried out, and the fact that the contract was subsequently modified by mutual agreement, without consultation with or further agreement on the part of Thomas F. Cody, could not operate to take from him the right to commissions which had been fully earned when the parties originally contracted in January. The defendants urged, however, the provisions of section 640d of the Penal Code, which provides that in cities of the first and second class, "any person who shall offer for sale any real property without the written authority of the owner of such property, or of his attorney in fact, appointed in writing," etc., shall be guilty of a misdemeanor, as a bar to the plaintiff's right of recovery. It is conceded that William Dempsey was the attorney in fact of Mary E. Dempsey, the owner of the "Marie," and a paper was offered and received in evidence which reads as follows: "They will take 86 st subject to 1st and 2nd mortgages. We to take 26th ward lots subject to taxes and assessments not to exceed $6,500.00. William Dempsey." Plaintiff's assignor testifies that this paper was made and executed by William Dempsey for the purpose of convincing Frederick Beltz, attorney for Miss Willmann, that he was authorized to enter into the negotiation, and while it is not as definite as might be desired, we are of opinion that under the circumstances of this case, the paper might be accepted as a substantial compliance with the provisions of the statute. All that the statute requires is a written authority by the attorney in fact, and if this paper was given to the plaintiff's assignor for the purpose of showing it to Mr. Beltz, it was an authority to act in the matter. Mr. Dempsey denies that he signed the paper, but there is a decided suggestion of quibbling upon this point, and Thomas F. Cody testifies positively that the paper was signed by Mr. Dempsey in his presence, and where there is a conflict of evidence the court may not say as a matter of law that the paper was not delivered to plaintiff's assignor as an authority for acting in the premises. The provision of the statute is highly penal, and it is to be strictly construed (Gay v. Seibold, 97 N. Y. 472), and there is no definite requirement, except that the authority SECOND DEPARTMENT, JULY TERM, 1903. [Vol. 86. to act in the matter shall be evidenced by a writing. Assuming that it would have been a misdemeanor for the plaintiff's assignor to have acted in the matter without a written authority, and that, under such circumstances, the courts were denied the right to aid in the collection of this claim, we are of opinion that a question of fact was presented by the evidence which should have been submitted to the jury, and that fact was whether Mr. Dempsey executed this paper and delivered it to Thomas F. Cody with the intention of authorizing him to negotiate this transfer. If such was the purpose we are of opinion that the writing was sufficient to constitute authority from the defendant's attorney in fact to enter into the negotiation and that the statute was so far complied with that the plaintiff's assignor could not have been properly convicted of a misdemeanor. But we are persuaded that, assuming the statute to be valid, it cannot have the effect of preventing a recovery in a case of this character. It is true that where the statute prohibits the doing of a particular thing, the courts will not aid in enforcing contracts made in violation of the law, but where a contract, not unlawful in itself has been executed, and the parties have enjoyed the benefits of the contract, the mere fact that one of the parties has violated a penal statute in the approach to the contract, will not prevent a court from enforcing payment. A vested right of action is property in the same sense in which tangible things are property, and it is equally protected against arbitrary interference. Where it springs from contract, or from the principles of the common law, it is not competent for the Legislature to take it away. Every man is entitled to a certain remedy in the law for all wrongs against his person or his property, and cannot be compelled to buy justice, or to submit to conditions not imposed upon his fellows as a means of obtaining it. Nor can a party by his misconduct so forfeit a right that it may be taken from him without judicial proceedings in which the forfeiture shall be declared in due form. Forfeitures of rights and property cannot be adjudged by legislative act, and confiscations without a judicial hearing after due notice would be void as not being due process of law. (Cooley Const. Lim. [6th ed.] 443, 444.) The provision of the Penal Code does not attempt to make it unlawful to enter into a contract of brokerage; it does not attempt to make such a contract unlawful. It simply provides that if any per App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. son shall offer to sell real estate in cities of the first and second class without having written authority to do so, this act shall constitute a misdemeanor, but this cannot justify outlawing the man who has acted in the premises and who has, under generally recognized principles of law, earned a commission for his services in bringing the parties together in a contract for the sale or exchange of premises. In considering a somewhat analogous case, under the provisions of section 363 of the Penal Code, which makes it a misdemeanor for a person who transacts business to use the designation "and company," or "& Co.," when no actual partner or partners are represented thereby, the court in Sinnott v. GermanAmerican Bank (164 N. Y. 386, 391), say: "If we might assume that the violation by Feiock of the statute disabled him from enforcing the performance of any executory contract, that was not this case. This was an executed agreement, and it is inconceivable that, in such a case, the statute should have any operation. It is a highly penal one and deserves a strict construction. (Gay v. Seibold, 97 N. Y. 472.) It was a measure intended to be in the interests of the commercial community and had its foundation in public policy. It simply made it a misdemeanor to do what was therein specified, and that is all. To extend its operation as far as the plaintiffs would have it, would be to give a construction to it which would permit of its injurious operation upon persons whose dealings with the guilty party have been in good faith. Such a construction would be foreign to the purpose of the enactment; contrary to public policy and without support in legal principles." So in the case at bar, if the alleged misdemeanor on the part of Thomas F. Cody operated to outlaw the claim for services, the plaintiff in this action, who has taken an assignment of a claim under an executed contract, may be deprived of his rights, and thus injuriously affected, while dealing in absolute good faith with the guilty party. It cannot be the policy of the law to place upon third parties the duty of investigating to determine whether their assignors have been guilty of committing misdemeanors in performing executed contracts for services. They are justified in presuming what the law presumes, that men have not committed crimes in executing contracts not in themselves unlawful, and an executed contract, where the contract itself is not contrary to law, may be enforced, either by an assignee or by the SECOND DEPARTMENT, JULY TERM, 1903. [Vol. 86. principal, and the latter is liable only for the penalty of his offense against the penal laws, if at all. It is to be noted, in passing, that the provisions of section 363 of the Penal Code relate to a positive misrepresentation on the part of the person using the designation "and company" when there is no one occupying that relation, which in many instances might operate as a positive fraud, by inducing a belief that there were other and responsible members of the firm, and the rule is of universal application, while in the statute now before us (Penal Code, § 640d) a method of contracting which is permitted by the Statute of Frauds with respect to every other contract of employment which is to be performed within one year, is made a misdemeanor, not generally throughout the State, but in cities of the first and second class only. By its provisions if a wife who owns real estate suggests to her husband that she would like to sell a piece of property, and the husband goes down street and offers the same to one of his friends, he is guilty of a misdemeanor if he resides and makes the offer within the limits of certain cities, and those who desire to escape the payment of their honest debts urge a violation of this highly penal statute which attempts to interfere with the unalienable right of contracting (Grossman v. Caminez, 79 App. Div. 15, 17, and authorities there cited) as a defense to an action based upon an executed contract, of which they have enjoyed the fruits. The discussion of this question might properly end here, but the fact that the Appellate Division of this court in the first department has felt called upon to go beyond the necessities of the case in Whiteley v. Terry (83 App. Div. 197; 82 N. Y. Supp. 89) to controvert the decision of this division in Grossman v. Caminez (79 App. Div. 15) may justify us in saying that we are not convinced of any error in the reasoning of that case, in so far as it dealt with the constitutionality of section 640d of the Penal Code, though it might properly have been held, as in the case at bar, that the contract having been executed a violation of the penal statute did not constitute a bar to recovery. The learned first department conceding that the order before it "must be affirmed, without regard to the question of the constitutionality of the act of 1901,*" proceeds to review the discussion of this court, and Chap. 128 (Penal Code, § 640d). — [REP. * |