Miller, J.:
The defendant Burke recovered $78,862.67 in a suit for legal services rendered by her testator, Thomas P. Burke, to the relators in certain mandamus proceedings. (See Burke v. Baker, 111 App. Div. 422; 188 N. Y. 561; People ex rel. Gleason v. Scannell, 172 id. 316.) This suit is brought on a contract whereby the plaintiff undertook to secure the retainers for Burke and to assist in the preparation of the cases, for which Burke was to pay him one-third of the compensation received. While Burlce was doubtless forbidden to make such a contract, the plaintiff could still recover upon it so far as the mere procuring of the retainers was concerned. (Irwin v. Curie, 171 N. Y. 409.) But the trial court held that the plaintiff’s relations to the city and to the matters involved in the mandamus proceedings were such as to render the contract unenforcible.
The clients obtained for Burke by the plaintiff had been appointed firemen by the fire commissioners of Long Island City shortly before consolidation, in apparent violation of the charter of ,Long Island City, from the fact that the appropriation appeared to be exhausted; wherefore they were removed. They employed counsel, who instituted mandamus proceedings, evidently without knowing on what point they could win. Apparently, the cases dragged along until the relators became discouraged, when they were persuaded by the plaintiff to retain Burke, who had been corporation counsel of Long Island City. The plaintiff was secretary to the mayor and clerk to the board of civil service examiners of Long Island City at the time of consolidation, when he was transferred to the position of labor clerk under the civil service commissioners of the city of Hew York, which position he held at the time the contract in suit was made, and still holds. He knew, from information gained in the position held by him prior to consolidation, that the appropriation for the fire department had been exhausted by illegal payments. He testified : “I obtained the information relative to the appropriation of $40,000, which appeared to be on the face of it to be overdrawn, but which, as a matter of fact, was not, from my general knowledge of Long Island City affairs by reason of being Secretary to the Mayor. I impar tedv that information to Mr. Burke in 1899, after consolidation. * * * I showed how they [referring to the items of [130]*130illegal payments] should be obtained, they should consult the minutes of the Board of Aldermen of Long Island City at that time to see if they passed on all items of over one hundred dollars that were paid out. * * * It was through bringing out those items that the case was won.”
It'should be said in passing that the point now before us was. not raised in Burke v. Baker (supra), and that the recovery in that case was upon a different contract. If all that is ¡shown or suggested by this record had been established in that case, the court might have found a way to prevent a recovery, even if the point had not been raised by counsel. To say the least, the transactions involved in this suit from the beginning have an ill look; but we are dealing now only with the'plaintiff’s relation to them.
The plaintiff’s position is that lie merely undertook to render services in a matter unrelated to the duties of the position then held by him; that his information was not confidential, but was contained in public records; that he had ceased to be an. employee of Long Island City ;'that oné may use in a lawful employment knowledge gained in a former employment; that the case is not within section 1533 of the charter ;
Free access — add to your briefcase to read the full text and ask questions with AI
Miller, J.:
The defendant Burke recovered $78,862.67 in a suit for legal services rendered by her testator, Thomas P. Burke, to the relators in certain mandamus proceedings. (See Burke v. Baker, 111 App. Div. 422; 188 N. Y. 561; People ex rel. Gleason v. Scannell, 172 id. 316.) This suit is brought on a contract whereby the plaintiff undertook to secure the retainers for Burke and to assist in the preparation of the cases, for which Burke was to pay him one-third of the compensation received. While Burlce was doubtless forbidden to make such a contract, the plaintiff could still recover upon it so far as the mere procuring of the retainers was concerned. (Irwin v. Curie, 171 N. Y. 409.) But the trial court held that the plaintiff’s relations to the city and to the matters involved in the mandamus proceedings were such as to render the contract unenforcible.
The clients obtained for Burke by the plaintiff had been appointed firemen by the fire commissioners of Long Island City shortly before consolidation, in apparent violation of the charter of ,Long Island City, from the fact that the appropriation appeared to be exhausted; wherefore they were removed. They employed counsel, who instituted mandamus proceedings, evidently without knowing on what point they could win. Apparently, the cases dragged along until the relators became discouraged, when they were persuaded by the plaintiff to retain Burke, who had been corporation counsel of Long Island City. The plaintiff was secretary to the mayor and clerk to the board of civil service examiners of Long Island City at the time of consolidation, when he was transferred to the position of labor clerk under the civil service commissioners of the city of Hew York, which position he held at the time the contract in suit was made, and still holds. He knew, from information gained in the position held by him prior to consolidation, that the appropriation for the fire department had been exhausted by illegal payments. He testified : “I obtained the information relative to the appropriation of $40,000, which appeared to be on the face of it to be overdrawn, but which, as a matter of fact, was not, from my general knowledge of Long Island City affairs by reason of being Secretary to the Mayor. I impar tedv that information to Mr. Burke in 1899, after consolidation. * * * I showed how they [referring to the items of [130]*130illegal payments] should be obtained, they should consult the minutes of the Board of Aldermen of Long Island City at that time to see if they passed on all items of over one hundred dollars that were paid out. * * * It was through bringing out those items that the case was won.”
It'should be said in passing that the point now before us was. not raised in Burke v. Baker (supra), and that the recovery in that case was upon a different contract. If all that is ¡shown or suggested by this record had been established in that case, the court might have found a way to prevent a recovery, even if the point had not been raised by counsel. To say the least, the transactions involved in this suit from the beginning have an ill look; but we are dealing now only with the'plaintiff’s relation to them.
The plaintiff’s position is that lie merely undertook to render services in a matter unrelated to the duties of the position then held by him; that his information was not confidential, but was contained in public records; that he had ceased to be an. employee of Long Island City ;'that oné may use in a lawful employment knowledge gained in a former employment; that the case is not within section 1533 of the charter ;
The plaintiff, however, is in a worse case. He still owed the duties of an employee to the city. An employee, though not in a position of trust or confidence as those terms are generally employed, owes a duty of loyalty to the employer beyond that merely of. doing the work which he is employed to do. The relation itself involves an element of confidence. Ho one would keep in his employ, no matter how simple the duties of the position, one hostile to his interests or who would sell information to an adversary in a lawsuit. Can there be any doubt that a discharge for such a reason would be justifiable? While an employee of .the city may not be precluded from contracting;with the city, I think he is precluded from selling information, no matter how gained, to be used against the city in legal proceedings. One so regardless of Ms employer’s interests has no business to be in the service of another. If, instead of seeking to recover the price of liis immoral bargain, the plaintiff were here defending removal proceedings, assuming he held a position from which he could only be removed upon charges after trial, would we say that the grounds were not sufficient, that the city was bound to keep in its service men who were merchandizing information for use in litigations against it ? The respondents cite two cases which, though in some respects distinguishable, ate near enough like this to support the judgment appealed from in the absence of any other authority: Lucas v. Allen (80 Ky. 681) and Davenport v. Hulme (11 Misc. Rep. 521).
There may be considerations of public policy applicable to public servants which do not apply to the ordinary relation of employer and employee, but considered solely from the latter standpoint the contract • sued on seems-to me so plainly against good morals and decent, honorable conduct as to require that the law should not aid its enforcement.
[133]*133The plaintiff, however, contends that the rule cannot be invoked in this case, for the reason that the money is in the hands of a third party. It appeared that it was received by. the attorney of the plaintiff in the case of Burke v. Baker (supra),, the defendant in this case. His possession of the money was that of his client, notwithstanding she was required to give security to get it.
It is also contended that the evidence tended to show a new agreement, or at least a settlement of the partnership accounts after the consummation of the illegal transaction. The plaintiff did not plead any such new or independent contract. Moreover, it is now settled that a new promise not collateral to and independent of, but wholly founded upon, the illegal contract is tainted by the same illegality. (McMullen v. Hoffman, 174 U. S. 639; and see Gray v. Hook, 4 N. Y. 449.) It may be that the defendant has the fruits of the illegal contract, but the law refuses its aid to maintain its own purity and for the sake of morality, not on account of the defendant. (Knowlton v. Congress & Empire Spring Co., 57 N. Y. 518 ; Embrey v. Jemison, 131 U. S. 336 ; Coppell v. Hall, 7 Wall. 542; Oscanyan v. Arms Co., 103 U. S. 261.)
Complaint is also made because of the direction of a verdict in favor of the defendant Burke on the counterclaim, on the ground that there was no evidence to justify it, but that position is untenable. One of the plaintiff’s exhibits contains an account kept by Burke, showing an indebtedness which, with interest, amounted to ás much as, or more than, the sum for which the verdict was directed. That evidence was in the case for whatever it was worth, and as both sides moved, the question was for the court.
The judgment is affirmed.
Present — Hieschberg, P. J., Jenks, Gaynor, Rich and Miller, JJ.
Judgment and order unanimously affirmed, with costs.
Laws of 1897, chap. 378; Laws of 1901, chap. 466.— [Rep.