dissent">Hiscock, J. (dissenting):

I am unable to concur in an affirmance of the judgment appealed from, and think the same should be reversed because defendants did not plead the defense upon which judgment was awarded in their favor by the referee. Their answer did not in any manner allege or set forth the claim that the contract npon which plaintiff based his action was opposed to public policy and illegal. The answer did, in addition to various specific denials and allegations not material upon this question, contain a general denial.

I think it must be conceded that, it did not appear upon the face *92of the complaint or necessarily from the evidence given in behalf of' plaintiff that the alleged contract,was illegal. Ho such claim is advanced either in the opinion or the report, of the referee or in the, brief for the respondents or the prevailing opinion. In fact, the reasoning and arguments adopted exclude such idea.

This being the case, I think that both authority and the general principles of practice and pleadings required that defendants-should plead the defense upon which they relied to defeat an apparently valid contract. It would seem as if this rule were plainly and decisively laid down in Milbank v. Jones (127 N. Y. 370, 375). (See, also, Coverly v. Terminal Warehouse Co., 85 App. Div. 488.)

Reliance is placed upon Dunham, v. Hastings Pavement Co. (56 App. Div. 244) as laying down the rule that the defense that a contract is illegal and void because in contravention of good morals or of sound public policy need not be pleaded where the interests of the general public are involved; that the courts in such case will of their own motion refuse their aid to parties so contracting.

Apparently this case does lay down such rule, but the authorities in the appellate courts upon which it relies for this doctrine do not. sustain it. In th,e case of Drake v. Siebold (81 Hun, 178) the court placed its decision squarely upon the ground that the invalidity of ■the contract sought to be enforced appeared upon the presentation thereof by the plaintiff upon, the trial and, therefore,.it was not necessary to plead its illegality. At the same time this case distinctly holds that if the contract as alleged and proved, by a plaintiff is valid on its face the defense that it is in fact against public policy and illegal is not available unless especially pleaded.

The case of Oscanyan v. Arms Co. (103 U. S. 261), also cited, is expressly distinguished in the case of Milbamk v. Jones (supra),and it appears that there the complaint was dismissed on the opening of plaintiff’s counsel because it appeared therefrom that the contract relied on was illegal.

We, therefore, find that the doctrine of the Dunhamcase not only is not sustained by the authorities referred to, but that it is expressly at variance with the decision of the Court of Appeals.

It is argued by respondents’ counsel that this ground of reversal is not available to plaintiff because he did not seasonably object that the defense was not pleaded. There was no opportunity for him so *93to do sooner than he has. The record before' us does not disclose that at any time during the trial defendants so urged or suggested this defense as to call upon plaintiff for any objection. So far as can be discovered, all of the evidence offered might be introduced upon and under the other issues raised by the pleadings, and there is nothing to indicate that plaintiff had any notice or warning that the defense in question would be urged until after the report of the referee had been made.

Under these circumstances, I think the judgment should be reversed.

Judgment affirmed, with costs.

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