The defendant under a contract of purchase has received plaintiff’s goods to the value of $1,555.81, and either now has them or has sold them and' retained the proceeds. It now objects to paying for them, but neither ténders back the.goods nor offers to return the proceeds, nor asserts that it suffered' any loss or damage by reason *395of the purchase. Its defense is, in effect, a plea in bar. It says that the purchase was negotiated by one McGuiness, its purchasing agent, and for the purpose of inducing the purchase plaintiff agreed to ¡Day and did pay McGuiness a commission upon the purchase price in violation of section 384r of the Penal Code (added by Laws of 1905, chap. 136); that this agreement to pay, and payment to, McGuiness being a criminal act, so taints with illegality the purchase thereby induced that the court should refuse to enforce the contract of purchase and permit defendant to retain plaintiff’s goods without paying for them. It is proposed to uphold the defendant in this position because it is believed that such a decision will be most effective in stopping the growth and spread of the corrupting and now criminal .custom of paying secret commissions to purchasing agents. It is not contended that the Legislature decreed that contracts, otherwise valid and wholly executed, should be unenforcible if induced by giving a secret commission to the purchaser’s agent, and while it might lie within the power of the Legislature to add this consequence to the penalties already prescribed for a violation of the statute, that is a matter for legislative and not judicial action. The unlawful agreement between plaintiff and McGuiness was no part of the contract between plaintiff and defendant, and in order to prove the latter it was not. necessary to prove the existence of the former It needs neither argument nor the citation of authorities to establish the proposition that McGuiness could not have recovered from plaintiff the agreed percentage because the contract to pay it was in itself a criminal act. The contract between plaintiff and defendant was not criminal and was fully executed, Undoubtedly the secret agreement to pay a commission to plaintiff was a fraud on defendant and rendered the contract voidable at its option. (Smith v. Seattle L. S. & E. R. Co., 72 Hun, 202.) It might, if it had discovered the fraud in time, have refused to receive the goods, or having received them might have tendered them back or might even now counterclaim for the damages^ it suffered from the fraud if, in fact and law, it could show that it had suffered damage; The statute which has made that a crime, which heretofore was merely immoral, has affixed to that crime an appropriate penalty. It is no part of our duty to assume legislative power and prescribe an additional punishment, nor are we to assume, in the absence of allegations to *396that effect, that’the defendant did in fact suffer damage as a result" of plaintiff’s unlawful agreement with McGuiness.;
The' determination ' of the Appellate Term should be affirmed,with costs. ' '■■■
Pattebson, P. L, concurred.
' Determination and judgmént reversed, new trial ordered, with costs to appellant,, except disbursements for printing.brief in reply, to abide event.