Dunham v. Hastings Pavement Co.

118 A.D. 127, 103 N.Y.S. 480, 1907 N.Y. App. Div. LEXIS 628

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1907
• Status: Published

Opinions

Laughlin, J.:

This action is based upon a contract in writing which the defendant has insisted from the commencement of the litigation was void upon grounds of public policy. On two former appeals, after trials on the merits, wherein the record not only presented the contract, but proof of the nature and extent of the services rendered thereunder, this court adjudged that the contract was valid (56 App. Div. 244; 57 id. 426; 95 id. 360), basing its decision mainly upon the authority of Chesebroughv. Conover (140 N. Y. 382). We are now asked on the' face of the contract alone, which is set forth in. the complaint in hmc verba, to reconsider the former decisions of this court and declare the contract void upon the authority of Veazey v. Allen (173 N. Y. 359) which was drawn to the attention of this court on the second appeal, and on the authority of Hazelton v. Sheckells (202 U. S. 71) and Sussman v. Porter (137 Fed. Rep. 161, and cases therein cited). The views expressed in the opinion in Veazey v. Allen (supra), which in this regard were not essential to the decision, incline toward the doctrine subsequently announced by the Supreme Court of the United States in Hazelton v. Sheckells (supra), that the validity of a contract with respect to services concerning legislation or the action of public bodies or officials in awarding contracts is to be determined not by what is expressly contracted to be done, but upon what may be done thereunder and the tendency of the agreement, where the compensation is contingent upon success, to induce improper solicitation or the unlawful and corrupt use of money. The Court of Appeals, however, in the Veazey Case (supra) neither expressly modified nor overruled the Chesebrough case, but on the contrary reaffirmed its doctrine.

Under the broad doctrine announced in Hazelton v. Sheckells (supra) it is clear that this contract could not be enforced. However, whether the contract be void upon grounds of.public policy is not a Federal question, but one for the exclusive jurisdiction of our own courts. The majority of the court, as now constituted, would favor the adoption by the State courts of the doctrine enunciated in Hazelton v. Sheckells (supra), but since it apparently goes beyond any doctrine enunciated by the Court of Appeals and essential to the decision of the case before the court, and since the former decisions o.f this court under which this litigation has been continued, were based upon a former decision of the Court, of Appeals, we think it should be left to that court to decide whether it was intendéd by the Veazey case, or is now the judgment of that court, that the doctrine of Hazelton v. Sheckells (supra) should be fully adopted in this State.

The interlocutory judgment should, therefore, be affirmed on the authority of the decisions of this court on the former appeals herein.

Pattebson, P. J., Houghton and Lambert, JJ., concurred; Scott, J., dissented.