Edelmuth v. McGarren — 4 Daly (N.Y.) 467

Majority

p. 467

Isaac Edelmuth v. Alexander McGarren.

Headnote

The sale of lottery tickets being illegal, a lease of premises to be used for the purposes of such sale is void, and the • rent reserved thereon cannot be recovered.

Appeal by defendant from a judgment of the First District Court, entered in favor of the plaintiff, on the verdict of a jury.

The plaintiff, by an instrument in writing, leased to the defendant a store or office in West Broadway, in this city, for the term of two years and eleven months, and this action was brought by him to recover one month’s rent under that lease.

The defense interposed by the defendant was, that the premises were let and hired for the purpose of vending or selling lottery policies therein.

On the trial, all the testimony by which it was sought to show that at the time when the agreement for the letting of these premises was made, it was understood between the parties that they were to be used for the purpose aforesaid, was excluded by the justice; and he directed the jury to find a verdict in favor of the plaintiff.

—In rejecting the evidence offered by the defendant, the court below erred.

By the laws of this State the carrying on or conducting of a business for the sale of lottery tickets is unlawful, and every, contract made for the purpose of aiding, assisting, or furthering the same is void.

If; therefore, it was understood between the parties, at the time of making the agreement for the lease, that the store in ."question should be used and occupied by the defendant as a lottery office; and that, as would seem from the latter’s

p. 468

testimony, the plaintiff subsequently fitted the same up, with the view that it should be so used and occupied, then the lease was void, and the plaintiff cannot recover under it (Updike v. Campbell, 4 E. D. Smith, 570).

A party will not be permitted to come into a court of justice, and invoke its aid for the purpose of enforcing a contract or agreement made and entered into by him, in regard to a transaction expressly prohibited by law.

It is true the plaintiff denied that he altered or fitted up the premises for the object indicated ; but that was a question of fact for the jury to determine.

The judgment should be reversed.

Judgment reversed.

Footnotes

* Present, Daly, Ch. J., Robinson and Loew, JJ.