Under an allegation in the answer of illegality in the purpose of a contract the defendant may prove that the contract though legal in form was entered into for such illegal purpose. The presumption of legality where a contract is capable of two interpretations — one denoting a legal contract and the other an illegal contract —is a primary presumption only and may be overcome by proof of an illegal purpose intended. Under the allegations of the answer the defendant may prove that the wine was illegally sold to be used as a beverage and the court will give no aid to either party to a contract thus tainted. The counterclaim should be stricken out because under its allegations recovery is sought upon an illegal contract.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.