The opinion
Crane, J. (concurring in result).
The plaintiff has brought an action against the North American Newspaper Alliance to recover the agreed price of ten radio messages sent by him from the dirigible
Graf Zeppelin,
while it was
en route
from Friedrichshafen, Germany, to New York, in October, 1928. The defendant pleads the fraudulent or illegal conduct upon the part of the plaintiff in obtaining his information, which, it is said, will prevent the courts from affording him any relief. The allegations in the answer on this appeal must be taken as true, in order to determine whether the defense be good. The matter pleaded reads as follows:
“
The contract alleged in the complaint was made in violation of the terms of the contract by which the plaintiff engaged passage to fly from Friedrichshafen, Germany, to New York upon the dirigible
Graf Zeppelin,
in that the plaintiff knew that the exclusive news rights of the flight of the said dirigible had been acquired by a third party and the plaintiff, accordingly, had agreed, as a condition of being given passage on the said dirigible, that he would give no interviews and send no reports of the said passage while
en route
and for eight days after the completion of the flight. * * *
“ The contract alleged in the complaint and the performance thereof by the plaintiff was, therefore, a fraud upon the owners, managers and operators of the said dirigible and upon the owner of the exclusive news rights
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of the passage of the said dirigible from Friedrichshafen to New York, and a fraud upon the public, and was illegal, void, and against public policy and unenforcible at law or in equity.”
In my judgment, if these allegations be true, they afford an absolute bar to the plaintiff’s right of action. The doctrine of
Lamb
v.
Cheney & Son
( 227 N. Y. 418 ) and
Campbell
v.
Gates
( 236 N. Y. 457 ) has nothing to do with this case. The defendant did not induce the plaintiff to break his contract with a third party or conspire with him to that end. There is no such allegation in the answer. This is not a case, therefore, where the defendant would be hable for procuring the plaintiff to break his contract with another. The reason the plaintiff cannot recover is because the courts will not aid him in his fraud and deception. His own conduct has been such as to close the doors of justice to his plea.
The
Graf Zeppelin
was about to make a record flight from Germany to America and the events happening from start to finish would be of extreme interest to the news reading public. To obtain this, news it was necessary to travel in the ship. While in transit the news was a secret, known only to those making the flight. The owners of the ship, therefore, had the right to keep this news to themselves the same as they had the right to possess any other property, at least, until the landing of the ship. Those in authority could impose as a condition for taking passage the promise and agreement not to reveal, by radio or otherwise, these secrets, these matters of news interest. The plaintiff obtained permission to go aboard the ship and to fly across the Atlantic upon his promise and agreement that he would not give out any accounts of the journey or the happenings on the passage. He was trusted; he was believed; he obtained the confidence and the secrets of the
Graf Zeppelin
people. And this he did, it is alleged, for the very purpose of betraying that confidence, defrauding the owners and
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violating his trust. He now comes into court and asks the judiciary of this State to help him recover money from the defendant for his fraudulent and deceitful conduct. The defendant, he says, promised to pay him for his betrayal.
From a very early day the law has refused to aid plaintiffs in similar situations. While the law does not approve the defendant’s conduct yet, being called upon to choose between two evils, it prefers to permit the defendant to retain the benefits of such an unlawful contract than to aid a plaintiff in enforcing it. As stated by Lord Mansfield in the case of
Holman
v.
Johnson
(1 Cowp. 341, 343): “ The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this:
ex dolo malo non oritur actio.
No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. * * * It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring this action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault,
potior est conditio defendentis.”
Fraud, deceit, breach of trust, are general terms covering divers situations and circumstances, and seldom yield to definition or limitation; in other words, the facts differ in every case, but the principle remains the same. Thus, an agreement to divide the profits of a fraudulent scheme, or to carry out some object, in itself not unlawful, by means of an apparent trespass, breach of contract or
*261
breach of trust, is unlawful and void. (Pollock on Contracts, 342; Salmond & Winfield, Contracts, p. 145;
Harrington
v.
Victoria Graving Dock Co.,
3 Q. B. D. 549.) Where a confidential agent, having been discharged and having in bis possession correspondence of his former employer, tending to show an illegal attempt to influence legislation, agrees to give to a third person half the profits arising from a sale of the correspondence to newspapers, the contract is immoral and will not be enforced by the courts, even though the illegality be not pleaded. Such a contract is opposed to good morals and sound public policy.
(Barry
v.
Mulhall,
162 App. Div. 749 .) See the same principle applied in
Woodstock Iron Co.
v.
Richmond & Danville Extension Co.
( 129 U. S. 643 );
Gray
v.
Hook
( 4 N. Y. 449 );
Arnot
v.
Pittston & Elmira Coal Co.
( 68 N. Y. 558 ). A seller cannot recover the price of goods sold where he has paid a commission to an agent of the purchaser
(Sirkin
v.
Fourteenth Street Store,
124 App. Div. 384 ); neither could the agent recover the commission, even at common law and before the enactment of section 384-r of the Penal Law (now § 439).
(Harrington
v.
Victoria Graving Dock Co.,
3 Q. B. D. 549.)
The basis for such decisions is the immorality of such agreements and the policy of the State against enforcing them. The betrayal of trust or confidence, the obtaining of secrets by trick and deceit, cannot form the basis of a contract to pay for such immoral acts. The public policy of this State, as gathered from the decisions, insists upon fair dealing and honest transactions, for the law does not aid in fraud and deceit. (See, further,
Materne
v.
Horwitz,
101 N. Y. 469 ;
Ridgely
v.
Keene,
134 App. Div. 647 ;
Rhodes
v.
Malta Vita Pure Food Co.,
149 Mich. 235 ;
Driver
v.
Smith,
89 N. J. Eq. 339.)
The defense, as pleaded, brings the plaintiff under the condemnation of this law. Trusted upon his promise not to give out the news of the air exploration undertaken
*262
as a scientific adventure, he agreed to breach the confidence reposed in him, and reveal the secrets to others for pay. The law leaves the plaintiff to be judged by his own standards; his complaint that the defendant treated him as he treated others falls upon deaf ears; the law is silent; it has nothing to say.
The order appealed from should be affirmed, and the question certified answered in the affirmative.