Majority
p. 421City Court. Trial Term June, 1887. FLEET against WEINBERG et al.
Headnote
A contract of purchase, where the parties intend that the property shall not be delivered, but that settlements shall be had, at appointed times, of the differences in value based on the rise or fall of the market, is void.Both parties testified substantially to the effect that at the time the contracts were made, it
p. 422
was not their intention that the property to be bought' should be delivered to or accepted by the plaintiff; on the contrary, that they expected to settle at the appointed time the differences in value, based on the rise or fall of the market. Such a contract is void (Ball v. Davis, 1 St. R. 518). If the plaintiff had testified that he intended to have carried out the contract according to its terms, expected to receive and pay for the stock at the appointed time, the question of bonafides would have been submitted to the jury, as in Cyrus v. Portman (1 City Ct. Supplt. 1). But on the admissions of the parties, the contract was a mere disguise for gambling, is a wager within the statute, and not enforceable ( 70 N. Y. 205 ).
Under the circumstances, the complaint was properly dismissed, and the motion for a new trial must be denied.