Prejudicial error requiring a new trial was committed. The defense was predicated upon a corrupt and illegal agreement on the part of the plaintiff and the defendant’s employee, Lupis, whereby the plaintiff and his wife, for whom he sued as assignee, were to be paid ten per cent, instead of three per cent interest regularly allowed by the defendant. In consummating the fraud a credit in the sum of $16,500 for a deposit of only $14,583.65 was given. Whether this was the arrangement or whether the sum of $16,500 was actually deposited, as claimed by the plaintiff, was a sharply contested issue. The defendant was, therefore, entitled to have the jury fully and clearly instructed upon the law applicable.
While the court in the main charge in substance instructed the jury that the plaintiff could not recover if they found that a conspiracy between himself and Lupis to defraud the defendant existed, the force of this instruction was later nullified. The ultimate result of the court’s decision on requests to charge made by counsel for both parties left the jury in confusion as to whether plaintiff was entitled to recover the entire amount sued for or should be subjected' to a nonsuit. Upon this record the jury had before them only this alternative. They would not be justified in returning a verdict in plaintiff’s "favor for the lesser amount claimed by Lupis to have been received from the plaintiff and his wife. If the jury found that Lupis had obtained the lesser amount, they necessarily would also find that the corrupt agreement to defraud the bank had been entered into and carried out to the extent of granting the plaintiff and his wife a credit in excess of that to which they were entitled. In such circumstances public policy requires that no recovery be had by a -party to the fraudulent
That the jury were in doubt as to whether Lupis had received the greater or lesser amount is shown by a request from the foreman before the jury had retired. He asked whether the jury could “ reach a verdict of less than $16,500,” to which the learned justice replied: “ That is within the province of the jury, you may, but you should decide the case upon the facts that have been given. You should take into consideration the facts adduced by both sides.”
This instruction was erroneous. In no view of the plaintiff’s case could the jury return a verdict of less than $16,500. They were required to bring in a verdict for such sum or a defendant’s verdict. As already stated, a finding for the plaintiff in the lesser amount would necessarily include a finding that the fraudulent conspiracy between plaintiff and Lupis had been carried out to the extent that a false credit in favor of plaintiff and his wife had been entered upon the defendant’s records. Under the authorities cited no party to such a scheme could thereafter recover any sum against the party sought to be defrauded. In view of this state of the record justice requires a reversal of the judgment and the granting of a new trial.
It follows, therefore, that the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Finch, P. J., and Townley, J., concur; Martin and Glennon, JJ., dissent and vote for affirmance.