Smyth v. Sichel

49 Misc. 643, 97 N.Y.S. 1008

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1906
• Status: Published

Opinion

Scott, J.

We consider that section 640d of the Penal Code (Laws of 1901, chap. 128) cannot be invoked as a defense to this action. The contract was fully executed, the defendant reaped the benefit of it, and acknowledged in writing the plaintiffs’ agency (which involved employment) and performance. The defendant must be held to have waived the defense afforded him by the statute. Cody v. Dempsey, 86 App. Div. 336; Sinnott v. German Am. Bank, 164 N. Y. 391. The defense that Sichel and Scully should have been jointly sued, if it had been available, was expressly waived upon the trial by the stipulation of defendant’s counsel that no defense was relied upon except the section of the Penal Code above quoted.

Giegebich, J., concurs.

Gbeehbaum, J., concurs in result.

Judgment reversed and new trial granted, with costs to appellants to abide event.