statement in writing with respect to his name and previous employment or qualifications, in violation of the provisions of section 939 of the Penal Law, which, so far as material to the question presented, are as follows:

"A person who obtains employment or appointment to any office or place of trust by color or aid of any false or forged letter or certificate of recommendation, or of any false statement in writing, as to his name, residence, previous employment or qualification, * ** is guilty of a misdemeanor."

Assuming, as counsel have on the presentation of the appeal, that the plaintiff's assignor violated these statutory provisions in obtaining employment from the defendant, still in my opinion that does not prevent a recovery on the contract. The statute does not declare that a contract so obtained is void, nor does it prohibit a recovery thereon. It merely declares a person so obtaining employment to be guilty of a misdemeanor, and of course, as already observed, the contract of employment, while executory, could have been rescinded, either on the ground of fraud or because it was obtained in violation of the statute; but here there has been no rescission, and the question is whether the party who has received the full fruits of the employment shall be permitted to retain the entire contract price at which it was willing to sell the goods, which included its own profits and the commission of 5 per cent. which it agreed to pay to the plaintiff's assignor for procuring the contract. Here the employment of the plaintiff by the defendant to perform services for which a recovery is sought did not contravene any public policy or statute of this state. It was perfectly legal for the defendant to employ the plaintiff's assignor to obtain these contracts.

There was no illegality in the contracts for the sale of defendant's goods which the plaintiff's assignor negotiated, and therefore our decision in Sirkin v. Fourteenth Street Store, 124 App. Div. 384, 108 N. Y. Supp. 830, is not in point, for there we deemed the contract, by which the agent of the purchaser was to receive a rebate on the price paid by his employer for the goods, to be precisely the same in effect as if it had been expressly embraced in the contract of sale, and since the contract of sale, upon which the action was brought to recover the purchase price of the goods, involved the bribery of the purchaser's agent, we held that it was invalid and unenforceable, as contravening the public policy of the state as evidenced by the statute. We fully recognized, in deciding that case, that we were making an extreme decision; but we deemed it necessary to enforce the public policy of the state to protect employers against fraud and dishonesty on the part of their employés and to insure honesty in business dealings, and therefore our decision is not controlling on the case here presented, where there is no claim that the defendant has been in any manner damaged or in the least prejudiced by the false representation in writing with respect to the identity of the plaintiff's assignor by which it was led to employ him.

This view is, I think, supported by the decision in Ballin v. Fourteenth Street Store, 195 N. Y. 580, 89 N. E. 1095, in affirming 123 App. Div. 582, 108 N. Y. Supp. 26, which allowed a recovery by the vendor where the vendee was aware of the agreement between his agent and

the vendor for a commission on the sale which was in violation of the provisions of section 384r of the Penal Code, being the same statutory provisions on which our decision in Sirkin v. Fourteenth Street Store, supra, was predicated. No opinion was written by the Court of Appeals in that case, but the decision of the Appellate Division was placed on the ground that the employer had not been defrauded, inasmuch as he was aware of the fact that the agent was to receive the commission and with that knowledge authorized the purchase.

In Schank v. Schuchman, 212 N. Y. 352, 106 N. E. 127, affirming Hearn v. Schuchman, 157 App. Div. 926, 142 N. Y. Supp. 573, it was held that a suit in equity for the rescission of contracts under which the plaintiff purchased wagons of, and had wagons repaired by, defendant, and for the recovery of the amount paid, would not lie, on the ground that the defendant, in violation of section 439 of the Penal Law, had bribed the plaintiff's employés who made the purchases and had the repair work done, inasmuch as the plaintiff could not make restoration to the defendant, and that there could be no recovery, in the absence of an allegation and proof of some disparity between the price of the wagons and repair work and the price paid, and then only in an action at law, which was the rule of law declared by this court applicable to the facts in a former action at law. Hearn v. Schuchman, 150 App. Div. 476, 135 N. Y. Supp. 52. In Schank v. Schuchman, supra, the Court of Appeals also held that an action for the rescission of an executed contract will not lie, unless a decree of rescission is essential to the protection of the party demanding it.

This is not wholly a pioneer case. On principle, I think, it is governed by the decision in Kenny v. Union Railway Company, 166 App. Div. 497, 152 N. Y. Supp. 117, wherein it was held that, so long as the the master permitted services to be performed under the contract of employment obtained by the employé, as here, in violation of the provisions of said section 939 of the Penal Law, the relation of master and servant existed, with all of the rights and duties flowing therefrom, and that a recovery could be had for the death of the employé, caused by the negligence of his employer, and in that case it was expressly decided that the violation of the statute did not render the contract of employment void, so that decedent was a mere licensee, but only voidable at the election of the employer. The same principle was decided in Hart v. N. Y. C. & H. R. R. R. Co., 205 N. Y. 317, 98 N. E. 493, wherein it was held that a contract of employment obtained by false representations was voidable, but not void, and that a recovery could be had against the employer for negligently causing the death of an employé, although the employment was obtained on a material false representation in writing made by the employé, who was an infant, with respect to his age, which was in violation of like statutory provisions existing at that time, for they have been in force in the same phraseology since the amendment of section 570 of the Penal Code by section 1 of chapter 654 of the Laws of 1886.

I think it necessarily follows from the two decisions last cited that until such time as the employer rescinded the contract of employment

a recovery could be had thereunder. That must follow if the contracts were merely voidable and not void. The only theory upon which a recovery on an executed contract can be prevented is that it was void ab initio. On the facts alleged no injustice has been done the defendant, and so far as appears no discretion even was vested in the plaintiff's assignor. If he was given a selling price by the defendant, and obtained the contracts therefor without the exercise of any discretion on his part, the defendant could not have been prejudiced. He procured what the defendant desired and what it employed him to obtain. Doubtless he thought that the defendant would not be impressed with his ability to obtain the contracts if he disclosed his identity; but, having confidence that he could obtain the contracts, in order to obtain the employment and be afforded an opportunity so to do, he, in violation of the statute, impersonated his brother. It is a case quite aptly described as the commission of a crime in the approach to a contract rather than in the contract itself or in the performance thereof. See Cody v. Dempsey, 86 App. Div. 335, 83 N. Y. Supp. 899; Haynes v. Abramson, 97 N. Y. Supp. 371; Beilin v. Wein, 51 Misc. Rep. 595, 101 N. Y. Supp. 38; Hough v. Baldwin, 50 Misc. Rep. 546, 99 N. Y. Supp. 545. In the circumstances I think the court may permit a recovery without condoning the acts of the plaintiff's assignor in violation of the statute, for the reason that the defendant was not, and, so far as appears, could not have been, injured thereby. I am of opinion that a recovery may be had on the contract, and therefore I do not deem it necessary to consider the further question, which would present a novel and interesting point, as to whether if there could be no recovery on the contract a recovery might be had herein on a quantum meruit.

I therefore vote to reverse the order, in so far as it overrules the demurrer to the first defense, and to affirm it in sustaining the demurrer to the second defense.

HEALY v. BERNSTEIN.

(Supreme Court, Appellate Term, First Department. January 2, 1918.) MASTER AND SERVANT 332(2)-INJURY TO THIRD PERSON-SCOPE OF AUTHORITY-PRESUMPTION.

In an action for damages from the negligence of defendant by his chauffeur in running defendant's automobile into plaintiff's taxicab, evidence for defendant held not to overcome the presumption that the employé was acting within the scope of his employment, so that the question whether he was then engaged in defendant's business was for the jury.

Appeal from Municipal Court, Borough of Manhattan, Sixth Dis

trict.

Action by William Healy against Theodore Bernstein. From a judgment of the Municipal Court, dismissing the complaint upon the merits,

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

in an action tried by the court and jury, plaintiff appeals. Reversed, and new trial ordered.

Argued December term, 1917, before GUY, BIJUR, and PHILBIN, JJ.

Steinberg & Levin, of New York City (Louis H. Levin, of New York City, of counsel), for appellant.

Tipple & Plitt, of New York City (Wilson E. Tipple and Arthur W. Clement, both of New York City, of counsel), for respondent.

GUY, J. In this action, brought to recover damages sustained through the alleged negligence of defendant, by his chauffeur, in running defendant's automobile into plaintiff's taxicab, the conflicting versions as to how the accident occurred authorized the submission of the issue of negligence to the jury. Defendant's servant, however, testified that at the time of the accident he was, with defendant's permission, using the machine for his own purposes, and on that evidence the court, at the close of the trial, dismissed the complaint upon the merits. The learned judge who wrote the opinion of the court in Ferris v. Sterling, 214 N. Y. 249, at page 253, 108 N. E. 406, at page 207, Ann. Cas. 1916D, 1161, states the rule applicable to a case of this character as follows:

"The license number of the car, coupled with evidence that the defendant held the license, was prima facie proof that the defendant was the owner. It was more than that; it was prima facie proof that the custodian of the car was then engaged in the owner's service. ** This presumption was not destroyed, as a matter of law, by the testimony for the defendant. Even though his explanation of the use of the car would absolve him, if credited, the question whether it should be credited was one of fact for the jury."

In the same volume of the Reports of our highest court, however, a judgment in favor of plaintiff is reversed, for the reason that it was not permissible for the jury to find that the chauffeur in that case was engaged in defendant's business at the time the injuries were inflicted. Reilly v. Connable, 214 N. Y. 586, 108 N. E. 853, L. R. A. 1916A, 954, Ann. Cas. 1916A, 656. And see Van Blaricom v. Dodgson, 220 N. Y. 111, 115 N. E. 443; Potts v. Pardee, 220 N. Y. 431, 116 N. E. 78.

The facts in this case bring it within the Ferris decision. The accident happened at 2 o'clock in the morning at Eighth avenue and 111th or 112th street, and the defendant's chauffeur testified that at about 10 o'clock of the previous night he got defendant's permission to take the automobile for the purpose of bringing a heavy valise belonging to the employé's brother to a motorboat club at 147th street and North River; that he left the garage at about 11 o'clock, and stayed at the club until about 1 in the morning; that that was the first occasion that he was authorized to take the car; that he happened to be at the place where the accident occurred, because he met at the club a friend who knew his brother, and took him to 116th street and Seventh avenue;" and that he did not know where the friend lived, or where he went after he left the car. The chauffeur's brother testified that in coming from the club he met an acquaintance, whom he had known from just

seeing him around-"just a chance acquaintance; I have seen him around from time to time"; that he was sure of the name, because he was questioned by his attorney; he only knew him from seeing him around there; he knew it was "Martin, or something like that"; that he never visited him at his home, and had not seen him since the accident; that the purpose of the trip to the club was to carry the witness' suit case, which contained some silverware; and that was the first occasion he went driving with the brother. The defendant stated he gave the chauffeur permission to go to the club, but could not recall whether the employé telephoned, or whether the permission was given by word of mouth, or what time of the day it was when defendant allowed him to go; that he did not know when the machine got back to the garage, or any of the circumstances in connection with the taking of the machine on the trip. On his direct examination the chauffeur more than once testified that the collision occurred at 111th street, and he repeated the statement on cross-examination; but he changed that testimony, saying that the accident occurred at 112th street, that he was not sure when he said 111th street; and his brother also stated that the automobile was going through 111th street, and then changed it to 112th street. Although the chauffeur had been in defendant's employ only about three months, defendant testified he had the right to go where he pleased within reason.

Under the circumstances, we cannot say that the presumption that the employé was acting within the scope of his employment was destroyed by the testimony introduced by defendant; and the question whether the servant was engaged in his master's business at the time of the accident was for the jury. Cunningham v. Castle, 127 App. Div. 580, 111 N. Y. Supp. 1057; Frankel v. C. & E. Chapel Frères et Cie., 165 N. Y. Supp. 441.

Judgment reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All concur.

MORGENSTERN v. SHAER.

(Supreme Court, Appellate Term, First Department. January 2, 1918.) LANDLORD AND TENANT 79(2)—AGREEMENT TO ASSIGN LEASE FOR YEAR— BREACH-BURDEN OF PROOF.

Where plaintiff sued as assignee of a contract for the sale to his assignor of defendant's grocery business and an assignment of the lease of the store for "about a year," to entitle plaintiff to recover, it was incumbent on him to establish by a preponderance of the evidence that defendant had agreed to transfer a lease for such a period and his breach in that respect.

Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Morris Morgenstern against Harry Shaer. From a judg

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes