Zimmerman v. Kinkel

• Decision Date: 07 February 1888
• Citation: 108 N.Y. 282,15 N.E. 407
• Parties: ZIMMERMAN et al. v. KINKEL.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 282

15 N.E. 407

ZIMMERMAN et al.

v.KINKEL.¹

Court of Appeals of New York.

February 7, 1888.

Appeal from a final judgment of the general term of the supreme court, First department, in favor of the plaintiffs, entered upon an order reversing an order of the special term, which sustained a demurrer by defendant Kinkel to the complaint, and overruled said demurrer. The action was in equity, for the cancellation of a bond and the restoration of $5,000, belonging to the estate represented by the plaintiffs as executors, and which money they had placed in the hands of one of the defendants to indemnify him against liability as surety upon the bond. The complaint alleged, in substance, that the testator, William Zimmerman, in his life-time, Emil Dieckerhoff, Louis Raffloer, and Adolph Erbsloeh were copartners in business, and that after the death of Zimmerman a settlement of accounts relating to firm transactions, was had between the plaintiffs on one side and the defendants Emil, Louis, and Adolph on the other, in which the latter wrongfully exacted, and the plaintiffs, with the defendant George Kinkel, as surety, executed, a bond in the penal sum of $5,000 to the said Emil, Louis, and Adolph, upon condition that if the obligors should ‘keep inviolate and confidential all the business transactions and dealings of the late copartnership firm of Dieckerhoff, Raffloer & Co., and of Caron & Co., the predecessors of said first-named firm, which may ever, at any time, in any wise, have come, or which may hereafter come, to their knowledge, and shall also preserve and keep inviolate and confidential the contents of correspondence and other writing relating thereto, and shall not disclose or divulge the same, then the obligation to be void, otherwise to remain in full force and virtue;’ that Kinkel signed as surety, and as such demanded and received from the plaintiffs the sum of $5,000, to be repaid with interest so soon as his obligation upon the bond ceased; that the bond ‘was given for no consideration, but was wrongfully extorted from the plaintiffs, and was signed, executed, and delivered for an illegal and immoral purpose, against public policy, and for the purpose of interfering with the administration of public justice, and to suppress evidence of illegal, wrongful, and unlawful acts on the part of the obligees therein named, all of which said defendant George Kinkel well knew;’ that the money so demanded by Kinkel was trust money, and was ‘received by him from the plaintiffs as the executors and trustees of William Zimmerman, deceased.’

The demurrer stated several grounds. (1) That the complaint does not state facts sufficient to constitute a cause of action against him; (2) that two causes of action have been improperly united; ( a) that the causes of action against the defendants Dieckerhoff, Raffloer, and Erbsloeh sounds in tort. ( b) that the cause of action against the defendant Kinkel is ex contractu; ( c) that the cause of action against the defendants Dieckerhoff, Raffloer, and Erbsloeh does not affect the defendant Kinkel; ( d) that the cause of action against the defendant Kinkel does not affect the defendants Dieckerhoff, Raffloer, and Erbsloeh; ( e) that both causes of action are inconsistent with each other.

The special term sustained the demurrer upon the grounds: (1) that the consideration of the bond was illegal and criminal, and so neither party could have relief; (2) that, although an action might lie against Kinkel to recover the money received by him, with knowledge that it belonged to the estate, it could not be joined with an action against the obligees of the bond. The general term reversed the order of the special term, with leave to answer over. The defendant did not accept that permission, and upon proof thereof final judgment was entered, and from that he now appeals.

When the parties to the contract are particeps criminis, and in pari delicto, then every court declines to give them its aid, either to enforce an executory contract or disturb one executed. Knowlton v. Spring Co., 57 N. Y. 537;Nellis v. Clark, 4 Hill, 429;Bank v. King, 44 N. Y. 87;Leavitt v. Palmer, 3 N. Y. 19;Haynes v. Rudd, 102 N. Y. 372, 7 N. E. Rep. 287.

The plaintiffs are in no sense in pari delicto, but are at most in delicto. To such the rule, in pari delicto, potior est conditio defendentis does not apply. Schermerhorn v. Talman, 14 N. Y. 93, 123;Morgan v. Groff, 4 Barb. 527, and cases cited; Pepper v. Haight, 20 Barb. 438;Curtis v. Leavitt, 15 N. Y. 12; 1 Story, Eq. Jur. § 300, and cases cited. 2 Pars. Cont. (6th Ed.) 746; Bayley v. Williams, 4 Giff. 638, (Eng. Ct. Ch. 1864;) Chit. Cont. (10th Amer. Ed.) 732, notes.

A. Simis,...