I concur in the dissenting opinion, but I wish to add this. The prevailing opinion says: "The immediate question is whether on the presently admitted facts a recovery by the plaintiff should be denied for the sake of public interests. This is a question of public policy in the administration of the law."
Since it is a matter of public policy rather than of staredecisis, in my judgment the use of the sword of judicial inquiry into the issues raised by the pleadings, after striking out the defense under consideration, would accomplish infinitely more for the public good than permitting the interposition by the defendant of the shield of that defense. A litigation of those issues would terminate the fraud. A case can be conceived, indeed, it could very well be the instant one, where the associates of a man such as the deceased, would, subsequent to his death, substitute an agent or dummy of their choosing in place of the one selected by the deceased. Under him the fraud upon the statute could be continued. It must be remembered that defendant is not the original agent or dummy but one who, it is alleged by plaintiff, converted the property in suit. As to the original dummy of the deceased, I agree that public policy would require a dismissal of an action brought by plaintiff to obtain the property.
The principles of public policy remain the same, it is true, but as the ways of the evildoer vary with his surroundings, the customs and opportunities of the times and the invention of new methods of aggrandizement, currently called "rackets," the sound application of the principles of public policy, assumingarguendo their applicability here, may require, in certain periods and in a metropolis of millions of people, a change in their application. In my judgment the time for that change in application has come in relation to the facts here disclosed. For this reason alone I would vote to reverse.
LEHMAN, Ch. J., SEARS and LEWIS, JJ., concur with LOUGHRAN, J.; FINCH, J., dissents in opinion in which RIPPEY and CONWAY, JJ., concur, CONWAY, J., in a separate opinion.
Order affirmed, etc. *Page 279