Opinion
June 18, 1962
In an action by an assignee of a contract to recover moneys claimed to be due and owing under the contract, plaintiff appeals, by permission of the Appellate Term of the Supreme Court, from its order dated June 29, 1961, which affirmed a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, First District, entered September 30, 1960, in favor of defendant, pursuant to an order of said Municipal Court, dated November 20, 1959, denying plaintiff's motion for summary judgment or for alternative relief, and granting defendant's cross motion for summary judgment ( 20 Misc.2d 659). Order of Appellate Term affirmed, with costs. At the time of the making of the contract on September 22, 1933, plaintiff's remote assignor had been operating a street surface railroad along Jamaica Avenue, west of 168th Street, in the Borough of Queens, City of New York. The defendant had been granted a franchise by the City of New York to operate omnibuses along certain streets in that borough, including part of this portion of Jamaica Avenue, and, in accordance with law, defendant had applied to the then extant Transit Commission of the State of New York for a certificate of convenience and necessity. The commission had scheduled a hearing on the application. Said assignor indicated that it would oppose the application, but it desisted because it entered into the contract in question with defendant. The contract provided that the assignor would not oppose the application and that defendant would pay the assignor 5 cents for each of its "local passengers" in the operation of its franchise. In our opinion the contract, being one to pay for another's refraining from opposing a legal proceeding such as the one here, was against public policy and therefore is unenforcible (cf. Atcheson v. Mallon, 43 N.Y. 147). Ughetta, Acting P.J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.