Nickelson v. Wilson

4 Thomp. & Cook 105

Opinion

Mullin, P. J.

The learned judge who tried this cause dismissed the plaintiff’s complaint, on the ground that the contract sought to be enforced was entered into to embarrass or stop the prosecution of the plaintiff on the indictment against him for defrauding the defendant Wilson, and if such was the object and effect of said agreement the judgment of the special term was right and must be affirmed. Bank of Steuben v. Mathewson, 5 Hill, 252; Osborn v. Robbins, 36 N. Y. 373; Porter v. Havens, 37 Barb. 343; Conderman v. Hicks, 3 Lans. 111.

Wilson’s counsel desired to induce the plaintiff to testify in the criminal proceeding in order to convict Scott, and in the civil action to recover a judgment for damages sustained by Wilson by reason of the fraud of Scott and the plaintiff, against Scott or against him and the plaintiff, if a recovery against both was legally necessary, and Wilson’s counsel desired plaintiff’s evidence in the proceedings in bankruptcy in order to obtain a dismissal of those proceedings against him.

For thus testifying the plaintiff was to be relieved from the recovery in the civil action, except $1,000, and an interest in the judgment was to be assigned for plaintiff’s benefit to the amount of $1,000, so that he could collect that amount out of Scott to reimburse himself for the $1,000 paid.

What, upon the evidence in this case, did the counsel for the parties intend should become of the indictment against the plaintiff should he testify in the civil suit and the bankruptcy proceedings ? Wilson had no power to release plaintiff from a trial and conviction upon it, except by not appearing against him or inducing the court to enter a nolle prosequi. He did not, in terms, agree to do the former but did agree to attempt to accomplish the latter.

What was Wilson to do to induce the court to discharge the plaintiff. He had charged Nickelson with the crime of obtaining from him $6,000 in promissory notes by false pretenses; he had sworn to it, and we must intend that his evidence would have led to the conviction of Nickelson, if left uncontradicted or unexplained. Would any court discharge a prisoner upon such a statement of facts by such a man? Good faith demanded that Wilson should not take the benefit of plaintiff’s evidence, and be a witness against him, and certainly he should not press a conviction after the public prosecution had used Nickelson as a witness against himself on the trial of the indictment.

Plaintiff’s counsel was driving a bargain with Wilson’s counsel to protect plaintiff against prosecution on the indictment, as well as against liability in the civil suit, the consideration for this arrangement on the part of Nickelson was the evidence he would give in aid of the enforcement of Wilson’s right.

It is no answer to these views of the intentions and conduct of Wilson and plaintiff that the latter only agreed to tell the whole truth as a witness, and thus secure the conviction of the guilty. It is obvious that Nickelson was to be released from conviction on the indictment, and notwithstanding he was known to be guilty, and although the mode of doing it was an appeal to the court, yet it is impossible to wink só hard as not to see that it was the intention to secure his release should the court refuse to comply with the counsel’s request. Good faith to the plaintiff demanded that if he performed his part of the contract he was not to be convicted and sent to State prison upon his own and Wilson’s evidence.

There was a very powerful inducement presented to Wilson to soften down his evidence against plaintiff if not to altogether suppress it, and a contract that induces such conduct on the part of a prosecutor in a criminal proceeding is unlawful and void.

The judgment must be affirmed, with costs.

Judgment affirmed.