(dissenting) :■
■ The conceded facts in this case show that John B, Platt,>tlie plaintiff, some eighteen yearsprior to t-lie present application. became intimate with a negro prostitute named Hannah Elias, and from that time down, to the year 1904 he continuously had illicit-relations- with her. For the’mhst part of that time she was a common prostitute. At the inception of the illicit relations Platt was about sixtysseven years of age and Hannah Elias- about twenty. The evidence ■ discloses that Hannah Elias soon began to exercise a marked influence over Platt. She early threatened to expose the illicit relations' existing between them and to bring him into the scandal and disgrace which publicity would involve; she also excited his fears by representing that he was liable.to physical violence at the hands- of her 'husband, and also threatened to charge him. with. tire paternity of an illegitimate child. By these means and others, and by constantly ministering to the debased passions of Platt, she came in the course" of time to have him almost, if not completely, under her- control and influence. ■ Beginning with the year 1896, when Platt was about seventy-seven years of age, she induced him to advance her $19,075, and in the several years following down- to about May 25,1904, she received annually from him sums of money, the amount in 1903 -being $186,409, and for the portion of the year 1904 $31,533, in all amounting to the sum of -$685,385. Considering the payment of this enormous sum of money by a white man to a negro prostitute,, based upon no other consideration than that of illicit intercourse, it does not" need a'great amount of additional protif to establish the existence of a supreme- and controlling influence of the prostitute over the man and in the latter a weakness as pitiable-as it is deplorable. ' Ho number of written or spoken words can add strength to the condition which these undisputed facts establish, and not a single one of them is denied or controverted "in the slightest degree. It seems to me'that it would be a travesty on *525justice if the law can afford no relief in protection of such of this money and property as remains in the hands of Hannah Elias until a final judgment and determination of the court upon a trial be had. As early as 1741 Hardwioke, Lord Chancellor, declared unenforcible a note given by a man to a common prostitute based upon the consideration of illicit intercourse. The basis of the decision, as expressed by the lord chancellor, is in these words: “ And the ground wherefore the court relieves against these securities is from a. presumption, that as women of the town are full of • design and artifices to impose upon people, that they therefore do make use of such artifices, and are guilty of some fraud or imposition, in getting such notes; and this presumption is made from general principles of policy, to discountenance the offence and to destroy the credit of such securities; and therefore to prevent women of the town taking any advantage of their artifices, the court says such a general presumption shall run against them that they may take no advantage of such securities.” (Robinson v. Cox, 9 Mod. 263.) The rule thus announced has been followed by the courts in this country. (Leighton v. Orr, 44 Iowa, 679; Sarnia v. Wilcox, 53 id. 547.) In the latter case the court said: “ The exercise of unlawful influence will be presumed when the parties to a deed live in adulterous relations, in the absence of proof of a lawful consideration. These rules are in accord with sound reason and legal principles. Their application will tend to restrain immorality.' Ho paramour should be permitted to enjoy the wages of her sin, which she obtains through the generosity of her victim, stimulated by her ministry to his passions.” (Dean v. Negley, 41 Penn. St. 312; Shipman v. Furniss, 69 Ala. 555; Bivins v. Jarnigan, 62 Tenn. [3 Baxt.] 282; Kessinger v. Kessinger, 37 Ind. 341.) In Cooley on Torts (2d ed. p. 603) the learned author states: “Where a transaction is brought about while the parties are living in illegal sexual relations, it is always open to suspicion of fraud or undue influence; and if it is a gift, or a sale for an inadequate consideration, or if it is specially beneficial to one party rather than to the other, the party benefited by it will be under the necessity of showing that no advantage .was taken, and that it was the result of free volition.” It is evident from these authorities that the law is not powerless to grant relief *526in a proper case, and if this be not such á case I am at a loss to imagine one.
It is said, however, that the testimony of Platt taken upon a ■ criminal proceeding against Hannah Elias tends strongly to establish that the payment of these sums of money was voluntary upon his part, and, therefore, he is not entitled to relief. Perhaps this is true, but the testimony also establishes that Hannah Elias when . the illicit relations began was a young woman about twenty years of age. When the plaintiff began to give her money she was a strong Woman, physically and intellectually. Platt was a' feeble, old man, physically and mentally, and in ¿proportion as he decreased in physical and mental power his gifts to her increased in size. When he testified in the Police Court he was an old man in his dotage, with a rambling intellect, insensible alike to his breach of morality or to his present condition. It presented a spectacle of strength .and viciousness overreaching old age and weakness. The relations themselves and the relative condition of the' parties coupled with the magnitude of the amount extorted establishes beyond perad- • venture that the voluntary character of the gift was such as a tigress exacts from a helpless victim, ii is further said that the -money and property which has been tied up by the injunction order is not shown to have been the property and moneys received hy Hannah Elias from Platt. Upon this subject it is sufficient to say that the complaint avers it to be such property and money, and the affidavit of Hannah Elias does not deny such averments. She alleges ■ that she had considerable property and money prior to 1896, and she admits that during the years specified in the complaint she received divers sums of money, the amount of which-she is.unable to state, and then she denies any intention of disposing of the money or property, except for the support and maintenance of herself and her child. The admitted facts upon this subject which show the character of the woman, her ability and means óf obtaining money and property make it plain that the great bulk of that of which she is now possessed must have come from the source averred in the complaint, and the failure to deny that it did not is an admission of the fact. The liability of waste and improper disposition of the property sufficiently appeared to authorize the exercise of the" ■discretionary power in granting the injunction. ■' (Van Orden v. *527Ledwith, 44 App. Div. 580.) Under the peculiar circumstances of this case and the relations of these parties the discretionary power thus exercised should not be interfered with.
The order should, therefore, be affirmed, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.