Negley v. Devlin — 12 Abb. Pr. 210

Majority

p. 210

NEGLEY against DEVLIN

New York Superior Court;

Special Term, 1872.

Headnote

Lotteries.—Action eob Money Received under Illegal Contract.

Proof that a ticket issued hy the managers of a concert stated that the bearer was entitled “ to admission to a grand concert . . . and to whatever gift might be awarded to its number,” to which was added the number of the ticket,—Held, to show beyond a reasonable doubt that the enterprise was a lottery within 1 Rev. Stat., 664.

A person who was employed to sell lottery tickets, after having sold a quantity of tickets, refused to pay over the money,—Held, that as the lottery was illegal, every contract made in furtherance thereof was void, and that no action would lie to recover back the money.

Motion to vacate an order of arrest.

James S. Negley sued Patrick C. Devlin in the New York superior court, and obtained an order of arrest against the defendant.

The affidavit on which the order was granted alleged that at the city of Washington, D. C., a grand .■gift concert and distribution was organized and formed, the net proceeds of which were to be appropriated and applied for the benefit of the Foundling Asylum of the Sisters of Charity, in the city of New York, and the Soldiers’ and Sailors’ Orphans’ Home, of Washington, D. C., of which enterprise or scheme the plaintiff was appointed sole trustee for holding the funds which might be realized from the sale of the tickets, and the proper distribution of the proceeds. That the defendant was appointed the general agent for the sale of the

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tickets, and had sold tickets to a large amount, and had refused to pay over the proceeds thereof, &c.

The defendant on this motion alleged that the enterprise or scheme was a lottery, within the prohibition of the statutes of this State; and, in support of such allegation, averred that it was managed by certain persons, whose names appeared in a certain handbill annexed to his affidavit, which had been published and issued “by and on behalf of said managers.” Such handbill was headed with the figures “$260,000. Grand gift concert and distribution for the benefit of,” &c. Then followed : “ After the concert, the following gifts will be awarded to the successful ticket holders,” &c., giving a list of real estate, bonds and cash, constituting one thousand and three gifts.

The tickets issued by the managers were as follows:

“The bearer is entitled to admission to a grand concert, for the benefit of .... to be held in Washington, D. C., on . . . and to whatever gift may be ojwarded to its number. ■ Tickets, $5 each. Ño. 35797.”

[Signed, <fec.]

The plaintiff denied that the handbill was issued or authorized by the managers, and alleged that it was published by the defendant. He did not, however, deny that the contents of the handbill were true, or that the ticket was one issued by the managers. And the only allegation in opposition to the proof furnished by the defendant that it was a lottery, was the general averment that it was not intended as a cover, but was in all respects a just, legal and fair scheme.

T. Bracken, for the motion.

Mr. Hamilton, opposed.

I am quite satisfied, upon all the evidence furnished on this motion, that the enterprise or

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scheme set on foot in Washington, and having for its object the realizing of funds for the two charities named, was a lottery within 1 Her. Stat., 664, and was, therefore, an unlawful scheme. Looking only at the ticket, which, it is conceded, was issued by the managers, and which was sold by the defendant, there cannot be any reasonable doubt that the enterprise was of a character which brought it within the prohibition of the statute. But when taken in connection with the other proofs, the case becomes entirely clear.

The effect of the prohibition by the statute, is to render every contract or transaction connected with this unlawful scheme, wholly void, and of no effect; and more especially so, when the contract is to aid in the violation of the statute (De Groot n. Van Duzer, 20 Wend., 390 ; Rolfe v. Delmar, 7 Robt., 80).

In this case, the managers engaged in an unlawful enterprise, and employed the defendant to assist them in their violation of the law. Their own acts, in setting the lottery on foot, being, therefore, malum pro hibitum,i their contract with the defendant cannot be enforced, and the plaintiff cannot maintain this action.

The object of the scheme, and the purpose to which it was designed, to bestow the proceeds, were such as commended them to a most favorable consideration. But the worthiness and excellence of the charities, does not remove the vice from the enterprise, or make it lawful and proper.

The result is, that the motion must prevail.