The defense of illegality, founded upon section 640d, of the Penal Code, is an affirmative defense which must be pleaded in order to be availed of. It was not so pleaded here. Furthermore, Cody v. Dempsey, 86 App. Div. 335, 83 N. Y. Supp. 899, is authority for the proposition that, where a contract not unlawful in itself has been executed, and the parties have enjoyed the benefits of the contract, the mere fact that one of the parties has violated a penal statute in the approach to the contract will not prevent a court from enforcing payment. This is criticised by the appellant as obiter dictum, and so, perhaps, it is, although stating a salutary and well-established rule. At all events it is no more obviously dictum than the statement in Whitely v. Terry, 83 App. Div. 197, 82 N. Y. Supp. 89, as to the validity and effect of section 640d of the Penal Code.
The judgment should be affirmed, with costs.
BISCHOFF, J., concurs.