Eggers v. Klussmann — 16 Abb. N. Cas. 226

Majority

p. 226

EGGERS v. KLUSSMANN.

N. Y. Supreme Court, First District ; Special Term,

June, 1885.

Headnote

Action for money paid.—Wagers.—Pleading ; complaint for MONEY DEPOSITED WITH STAKEHOLDER.

A complaint merely alleging plaintiffs wager, and deposit pursuant thereto with defendant as a stakeholder, and demand for the amount and refusal prior to the action, without alleging the nature of the wager or where it was made, is demurrable for not stating facts sufficient to constitute a cause of action.

Demurrer to complaint.

John Eggers sued Rudolph B. Klussmann to recover money deposited with defendant upon a wager.

The complaint alleged “ That on or about October 26, 1884, plaintiff made a wager with one J. E. D. Bosche, and in pursuance of said wager he deposited with defendant as stakeholder upon said wager or bet the sum of one thousand dollars, and that thereafter, and on or about November 18, 1884, and before the commencement of the action, he demanded the return of said deposit from defendant, which was refused.”

The statutes of this State provide : “ All wagers, bets or stakes made to depend on any race, or upon any gaming by lot or chance, or upon lot, chance or casualty, or unknown or contingent event whatever shall be unlawful. All contracts for or on account of any money or property or thing in action so wagered, bet or staked shall be void” (3 R. S. 7 ed. 1962, § 8). “ Any person who shall pay, deliver or deposit any money, property or thing in action, upon the event of any wager or bet herein prohibited, may sue for and recover the same of the winner or person

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to whom the same shall be paid or delivered, and of the stakeholder or other person in whose hands shall be deposited any such wager, bet or stake, or any part thereof, whether the same shall have been paid over by such stakeholder or not, and whether any such wager be lost or not” (Id. § 9). “The two last sections shall not be extended so as to prohibit or in anyway affect any insurance made, in good faith for the security or indemnity of the party insured, and which are not otherwise prohibited by law ; nor to any contract on bottomry or respondentia” (Id. § 10).

Defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

Simon Sultan, for the defendant, demurring.

1.The com plaint is insufficient since there is no allegation as to the nature of the wager; its illegality under some, rule of law or statute must be shown. At common law a wager was a valid contract, unless it was on a subject repugnant to public policy, morality or the like (1 Whart. Contr. § 449 ; 2 Pars. Contr. 6 ed. 626 ; Rap. & Lawr. Law. Dict, title “ Wager.”), and hence the mere allegation of a deposit of money on a wager shows no cause of action against the stakeholder at common law. Nor is such complaint, good under the statute ; plaintiff must- allege every fact necessary to bring himself within the purview of the statute, by force of which he claims to recover (Moran v. Morrissey, 28 How. Pr. 100 ; McKeon v. Caherty, 1 Hall, 300 ; Weyburn v. White, 22 Barb. 82 ; Langworthy v. Broomley, 29 How. Pr. 92 ). The right to recover money deposited on a wager is not a contract obligation, but a strict statutory right, and cannot form the subject of a set-off, and is barred by the statute of limitations in three years (Fowler v. Van Surdam, 1 Denio, 557 ; Bevins v. Reed, 2 Sandf. 436 ). The com»

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plaint does-not show that the wager was made to depend on any race, or upon any gaming by lot, or upon anything prohibited by the statute. There can be no presumption of the unlawful character of the wager. The circumstance that the legislature has j excepted a certain class of wager contracts from the operation of that statute, shows that there can be deposits on a wager which are lawful. Plaintiff is not only bound to show the illegal character of the wager under the statute by facts properly pleaded, but to negative every exception made by the statute regarding the legality of wagers and stakes (Harris v. White, 81 N. Y. 532 ).

II. The right to recover back money paid on a wager being a strict statutory right, the complaint must allege the place where the act or wrong from which plaintiff claims to derive his cause of action was committed. See Sampson v. Kruger, N. Y. Daily Reg. May 26, 1882, a case arising under this statute. See, also, the same rule applied to actions under the statutes of 1847 and 1849, giving an action to personal representatives of persons killed by the negligence of others (Beach v. Bay State Co., 10 Abb. Pr. 71 ; Harris v. White, 81 N. Y. 532 ; Vanderwerken v. N. Y. & New Haven R. R. Co., 6 Abb. Pr. 239 ; Whitford v. Panana R. R. Co., 23 N. Y. 465 . See, also, 31 Alb. L. J. 183; and cases there cited, and Debevoise n. N. Y., L. E. & W. R. R. Co., 21 Weekly Dig. 138).

Barnum & Retham, for the plaintiff, opposed.

It does not appear by the complaint what the wager was, where it was made, where the money was deposited with defendant, or whether the •demand was made before the money was paid over by the stakeholder to the winner.

All wagers are not illegal at common law (1 Whart. on Contr. § 449). If illegal, it is, because they are made

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so by statute. Wagers are made illegal by the statute of this State, and money deposited may be recovered of the stakeholder even after he has paid it to the winner. Aleatory contracts are not prohibited by the statutes of the State of Louisiana (Grayson v. Whatly, 15 La. Ann. 525 ).

Courts cannot take judicial notice of laws of other States not according to the common law (Holmes v. Broughton, 10 Wend. 75 ; Harris v. White, 81 N. Y. 532 , 534).

As the plaintiff has no remedy at the common law to recover back money deposited upon wager, he must recover, if at all, by force of a statute, and must by his complaint bring himself within its provisions (Langworthy v. Broomley, 29 How. Pr. 92 ; Cole v. Smith, 4 Johns. 193 ; McKeon v. Caherty, 3 Wend. 494 ).

The place being material, and the pleading being silent in regard thereto, the presumptions are against the pleader (Cruger v. Hudson River R. R. Co., 12 N. Y. 190 , 201).

If the deposit, was made without the political jurisdiction of the State of New York, there is nothing in. the complaint showing that there is any law of the. State, territory or country where the deposit was. made, giving a cause of action to plaintiff.

The demurrer should be sustained, with costs fo.fbs; defendant against the plaintiff.

Cases cited

Moran v. Morrissey 28 How. Pr. 100 N.Y.C.P. p. 227
Weyburn v. White 22 Barb. 82 N.Y. Sup. Ct. 1856-06-02 p. 227
Langworthy v. Broomley 29 How. Pr. 92 N.Y. Sup. Ct. p. 227, p. 229
Bevins v. Reed 2 Sandf. 436 N.Y. Super. Ct. 1849-04-07 p. 227
Harris v. White 81 N. Y. 532 N.Y. 1880-09-21 at 534 p. 228, p. 229
Beach v. Bay State Co. 10 Abb. Pr. 71 N.Y. Sup. Ct. p. 228
Vanderwerken v. New York & New Haven Railroad 6 Abb. Pr. 239 N.Y. Sup. Ct. p. 228
Holmes v. Broughton 10 Wend. 75 N.Y. Sup. Ct. p. 229
Cole v. Smith 4 Johns. 193 N.Y. Sup. Ct. p. 229
McKeon v. Caherty 3 Wend. 494 N.Y. Sup. Ct. p. 229
Cruger v. Hudson River Railroad 12 N. Y. 190 N.Y. at 201 p. 229