Bigelow v. Law

5 Abb. Pr. 455

Opinion

Culver, J.

—The order made by me on the trial of this cause, dismissing plaintiff’s complaint, was based on the complaint as originally framed, and on the opening of the plaintiff’s counsel. The averment that the plaintiff’s claim, in part, was for the “ influence” used by Bokee with the heads of departments, and the' expressions of counsel to the same effect, strongly impressed me with the opinion that the contract being an entire one, and void in part, must be held void in toto

* (Rose v. Truax, 21 Barb., 361). An agreement to compensate one for his “ influence,” personal or political, with the government, it is not pretended could be enforced. The worth or measure of value of one’s “ influence” would be no easy matter to determine in dollars and cents.

But striking from the complaint all claim for the “ influence” exerted, the plaintiff is left asking compensation for his “services,” “ time,” “ trouble,” and “ labor” devoted, at the request of defendant, to this negotiation for his benefit. The motion for dismissal of the complaint assumed its averments as true; and if they are all true, I think it is going too far to say that, under this complaint, the plaintiff should not recover something.

It is proper to remark, further, that since this nonsuit was ordered by me, the Court of Appeals, in Sedgwick v. Stanton (4 Kern., 289), have somewhat shaken or modified the decisions made by the lower courts. That court has declared, in the case cited, “ that a party who has a claim against the State may employ an agent to present and urge it, with proofs and arguments, before the tribunal authorized to act upon it, and that an agreement to pay such agent is valid, and can be enforced.’.’ I gather from this case, that the Court of Appeals mean carefully to intimate that courts have gone at least quite far enough in neglecting these claims as void and against public policy.

Taking the case, therefore, as it is now furnished by the amended complaint, and in view of the doctrine laid down by the Court of Appeals, and without prejudging the case as it may appear in another and full trial, I have come to the conclusion that the plaintiff should have a new trial.

The order dismissing the complaint is therefore set aside, and a new trial granted, with costs to abide the event.

Compare also, as to recovery for services as lobby agent, Marshall v. The Baltimore & Ohio Railroad Company, 16 How., 314. That an entire contract, &c, void in part is void in toto, see Roberts a. The Mayor, &c., of New York, ante 41.