Millbank v. Jones

• Citation: 127 N.Y. 370,28 N.E. 31
• Parties: MILLBANK v. JONES.
• Decision Date: 23 June 1891
• Court: New York Court of Appeals

127 N.Y. 370

28 N.E. 31

MILLBANK

v.JONES.

Court of Appeals of New York, Second Division.

June 23, 1891.

Appeal from an order of the general term of the superior court of the city of New York affirming a judgment in favor of the defendant entered on the verdict of a jury.

The action was brought to recover $5,000, and interest thereon, which the plaintiff asserts the defendant held in trust for him, pursuant to the terms of the following agreement:

‘Resolved, that the street commissioner be, and he is hereby, authorized and directed to make a contract for lighting all the streets, avenues, roads, squares, parks, public buildings, and places of the city of New York with coal gas; such contract to be founded on sealed bids and proposals, and to be made with the company, giving adequate security, to be approved by the comptroller, in the manner provided by law, which shall agree to do the same for the lowest price for each lamp or light per annum, or quantity when it can be measured, according to the existing regulations, and affording to such company sufficient time to lay their mains and introduce gas as required by the contract. The provisions of the contract last made and executed with the Manhattan Gas Company, as far as practicable, shall be embodied in the contract made in pursuance of this resolution, and the term during which the same is to continue will be for the same number of years as that contract. Any resolution or ordinance inconsistent with this resolution is hereby repealed.

‘New York, June 14, 1866. Received of R. W. Millbank five thousand dollars ($5,000,) and also certificate for two hundred and fifty (250) shares of the stock of the People Gas-Light Company of the City of New York, number seven, (7,) the said money and stock to be returned to said Millbank in case the resolution above shall not be passed and take effect before the 10th of July next; it being understood and agreed that said Millbank shall have the right at his election, in case said resolution shall pass and take effect before the said 10th of July, to purchase back the said stock at any time within sixty (60) days from the time said resolution shall take effect, by paying to me fifteen thousand dollars ($15,000) therefor, and that he shall on his part be bound to purchase the same, and pay said fifteen thousand dollars ($15,000) therefor, within said sixty (60) days, at my election. MORGAN JONES.

‘I assent to and join in the above understanding and agreement. New York, June 14th, 1866. R. W. MILLBANK.’

Ira Shafer, for appellant.

Joseph Fettretch, for respondent.

PARKER, J., ( after stating the facts as above.)

On the trial, the plaintiff, for the purpose of establishing a cause of action, introduced in evidence the agreement of the defendant to return the $5,000 paid to him in the event that the resolution therein referred to should not be passed and take effect before the 10th of July following; a record of the proceedings of the board of aldermen and board of councilmen; and a veto message by the mayor, showing that the resolution did not take effect before July 10th; together with proof that a demand for a return of the money was made prior to the commencement of the action,-and rested. There upon the defendant made a motion to dismiss the complaint, assigning, amount others, the following grounds: (1) A valid trust has not been established; (2) the contract is void, because on its face it appears that its purpose was to improperly influence legislation. It appears from the argument that Jones, at the time of its execution, received from Millbank $5,000, which on the happening of a certain event he agreed to return. It did not provide that Jones should pay to Millbank $5,000, but that ‘the said money [the receipt of which had been acknowledged] to be returned to said Millbank in case the resolution shall not be passed and take effect before the 10th of July next.’ Clearly, such a transaction contains every element essential to the creation of a valid trust. Day v. Roth, 18 N. Y. 448-453. It is the tendency of judicial decision to discountenance all attempts to influence the deliverations and determinations of public bodies and officers, other than by arguments which, being openly made, bear directly upon the merits of a pending measure or application, because in contravention of a sound public policy. A contract founded on...