In 1911 the defendant in this action was a member of Assembly. He came to Albany from New York. He was a lawyer. He advertised in an Albany newspaper for a stenographer. The plaintiff answered the advertisement. She went to the defendant’s hotel and had a conversation with him. She says that she made a contract with the defendant whereby he engaged her as his private stenographer and agreed to pay her $100 for her'services for the legislative season. The defendant admits the conversation but denies that any contract was made. The plaintiff alleges that in the conversation, before the bargain was struck, she told the defendant that she had been appointed as one of the general stenographers for the Assembly. The plaintiff immediately entered upon the performance of her duties. She took much dictation and wrote many letters. On the trial it was conceded by the defendant’s attorney that a majority of the letters were of a “ private nature.” The plaintiff testified that about two-thirds of the work was of that character. She performed much of her work at times when the Legislature was not in session — Saturdays, Sundays and evenings. She took a considerable amount of the dictation at the defendant’s apartments. Much of the typewriting she did at her own home; she did this work on her own machine. She did other work for the defendant, during recess, when the Legislature was not in session. The defendant telephoned the plaintiff frequently, calling her from her house to the Capitol.
The testimony of the plaintiff was well corroborated by circumstances and by other witnesses so that the trial court was entirely warranted in finding that the contract had been made *666and in resolving all the facts in her favor. But the contention is being urged here that the services which the plaintiff rendered to the defendant were services required of her in the performance of her duties as general stenographer of the Assembly, and that she was being paid for those services by the State, and that she is prohibited by section 67 of the Public Officers Law, section 10 of the Legislative Law (Consol. Laws, chap. 32 [Laws of 1909, chap. 37], as amd. by Laws of 1911, chap. 45), and section 855 of the Penal Law from receiving any other compensation for those services.
If the services performed by the plaintiff for the defendant were such as were required of her in the performance of her duties as general stenographer of the Assembly, the contract in question was void for want of consideration and also because it was in direct conflict with three separate statutes. But if the services were not within the range of the plaintiff’s official duties, there can he no doubt that the defendant is liable on his contract. It seems to me that these services were clearly outside the scope of her duties as an employee of the State. A large majority of the letters which she wrote were “ personal ” letters, they were of a “ private ” character, they were concerning “ social ” and “ fraternal ” matters. It cannot he supposed that the State of Hew York has ever intended to employ stenographers to attend to this sort of correspondence for the members of Assembly who come to Albany to enact laws. It may be difficult to separate the private and personal correspondence of the members of Assembly, on every occasion, from that which pertains to their official duties. In the exercise - of common sense and out of a disposition to be fair and accommodating and not picayune, the stenographers of the Assembly undoubtedly do much of this private and personal work. However, when the affairs of a member of Assembly are so extensive that it becomes necessary for him to employ a stenographer, at a fixed salary, to work nights and Saturdays and Sundays, attending to his private matters, doing it at her home instead of at the Capitol — such services are not within either the letter or the spirit of the statute under which general stenographers for the Assembly are employed. The defendant knew the law; he was a maker of laws — also he was a lawyer. *667With all these advantages over the common citizen, with all this knowledge at his command, he deliberately entered into this contract with the plaintiff. He knew that the plaintiff was one of the general stenographers for the Assembly; she told him so before he hired her. He 'must have known that an agreement to pay her for services for which she was already under pay from the State, would he a contract without consideration; a contract repugnant to section 67 of the Public Officers Law and repugnant to the other statutes on the subject. Therefore, it must he assumed that he contracted with the plaintiff to perform services outside the scope of her duties as general stenographer of the Assembly. This assumption is strengthened by the character of the work which she, in fact, did perform.
This contract was fairly and openly and honestly made by the parties hereto, and there is no reason in equity, or under the statutes, or in deference to public policy, why it should not be enforced. There can be no sort of doubt that the defendant made the contract in question and that he has availed himself of this girl’s services. His attitude here is wholly unconscionable and is not sustained by any statute of the State or sanctioned by any principle of law.
The judgment should he affirmed, with costs.
Judgment of the City Court and County Court reversed and new trial granted in City Court, with costs to appellant to abide event.