Hendrickson v. Beers — 19 N.Y. Super. Ct. 639

Majority

p. 639

John T. Hendrickson, Plaintiff and Respondent, v. George W. Beers, Defendant and Appellant.

Headnote

1. One who loses money at play may assign his claim against the winner of the money, and an action will lie against the latter at the suit of such assignee.

2. An assignment of “ all interest (of the loser) in a certain claim for $1,666 against” the winner, is sufficient in form to transfer it, that being the true amount of the claim, and that being the only claim of the assignor against the winner.

3. A receipt by the loser to the winner of “ seventy dollars in full of all demands,” does not preclude proof that only $70 of the whole sum lost was paid, and is no bar to a suit to recover the balance.

(Before Hoffman, Pierrepont and Robertson, J. J.)

Heard, June 4;

decided, June 16, 1860.

Appeal by the defendant from a judgment entered upon the report of A. Underhill, Esq., as Eeferee.

The action was brought, December 26, 1857, by the plaintiff, as assignee of E. 0. Suydam, to recover $1,666, for moneys lost by Suydam at play at the game of faro, and won by the defendant, between the 19th of September and 51st of October, 1857. The complaint states that Suydam so lost, in all $1,736. That the defendant had refunded $70 of the amount won, and that on the 24th of December, 1857, Suydam assigned all his interest in the residue of the moneys so lost and won, and his claim against the defendant therefor, to the plaintiff.

The answer denied each allegation of the complaint, and set up as a defense, that the defendant and Suydam accounted together; that $70 was found due to Suydam, and that defendant paid to Suydam and the latter received the $70 and gave to defendant “ a full discharge and acquittance of all demands, for or on account of any indebtedness of this defendant to the said Suydam.”

p. 640

The Referee found the facts in favor of the plaintiff and gave judgment for the sum claimed. The assignment from Suydam to the plaintiff is in the words following, viz.:

“ For value received, I hereby transfer and assign all my interest in a certain claim for sixteen hundred and sixty-six dollars, against George Beers, to John T. Hendrickson, of the city of Hew York, to have and to hold the same to and for the use of the said John T. Hendrickson.

“E. 0. SUYDAM.

"Dec. 24, 1857.”

The defendant proved and read in evidence a receipt in the words following, viz.:

“Hew York, Dec. 11, 1857.

“Received from Mr. George W. Beers, seventy dollars in full of all demands.

“it'm

“E. 0. SUYDAM.”

The plaintiff was permitted to prove, against the objection and exception of the defendant, that, at the time the $70 were paid and receipt given, there was nothing said about taking that sum in full of all demands.

When the testimony was closed, the defendant moved the Referee to dismiss the complaint, on the grounds,

1st. That the plaintiff had failed to prove his case, there being no sufficient evidence that the money lost by Suydam was lost' at play with the defendant; and that there was no proof that any money was paid by Suydam to the defendant.

2d. That the plaintiff was not entitled to recover in this action, on the ground that the evidence was insufficient to establish any ownership of the claim of Suydam in the plaintiff.

Sd. That whatever claim Suydam might have had against the defendant was extinguished by Suydam’s receipt of December 11, 1857.

The motion was denied, and the defendant excepted. The Referee accompanied his report with an opinion in the words following, viz.:

“The first objection to a recovery taken by defendant is, that there is not sufficient proof that defendant won Suydam’s money

p. 641

and that it was paid to him, or that the money, if lost, was lost in playing with defendant.

“I think the evidence sufficiently shows that the defendant was the proprietor of the faro bank and gambling-house where Suydam lost the money in question; and that Suydam lost said money while playing at said faro bank, and paid over the money when lost. It was immaterial whether defendant was actually himself dealing at his bank when Suydam lost said money, or whether some one else was dealing for him, as the persons, who play, play against the bank, or proprietor of the bank, in this game of faro. If Suydam lost; the bank, that is, the defendant, its proprietor, won. Such is, notoriously, the operation of the faro bank, or game of faro; such is the uniform description, or definition, of the faro bank, or game of faro, by Hoyle and other writers describing it. If there was anything in this faro bank of defendant different from the ordinary faro bank or game of faro, defendant, who himself went on the stand in his own behalf, should have shown this fact.

“The second objection of defendant is, that the assignment of the claim is insufficient; that it does not set out a sufficient consideration, and does not sufficiently describe the claim. The instrument of assignment declares that the assignment is made for value received. It is well settled that this is a sufficient setting out of a consideration to sustain a written agreement. Again, if there is anything vague in the assignment as to what claim of $1,666 it refers to, it is made sufficiently definite by the evidence of Suydam, who swears that this claim for money lost was the only claim he had against defendant. Again, he swears, substantially, that this assignment intended the demand in suit. I think, therefore, that the assignment is sufficient.

“ The third objection taken by defendant is, that the claim of Suydam was extinguished by giving the receipt for $70, even admitting that he had a valid claim before that. The receipt has no more effect than if Suydam had, instead of giving a receipt, admitted, in the presence of witnesses, verbally, that the $70 then paid was in full of all demands. If the fact and truth of the case was, that the payment, instead of being the full amount of the money lost, was only $70 parcel of $1,736 so lost, such verbal admission would amount to nothing. Even had said $1,736

p. 642

not been money lost at play, a receipt given in full by Suydam, when in fact only $70 was paid, would not have barred an action for the balance; much more will it not where such $1,736 was money lost at play.

“ The case of Ruckman v. Pitcher, (1 Comst., 392,) goes much further than is necessary to defeat the objection now under consideration. If the loser there had given the stakeholder a receipt in full for the stakes, without receiving from him any part thereof, or on receiving from him a small portion thereof, it is clear, within the principle of that decision, such receipt would have formed no defense to an action for so much of the stakes as had not been actually paid to the loser; for such supposed case of such stakeholder would not have been as strong or meritorious as the actual one, where he paid over the money on the direction of the loser to the winner; and yet he was compelled to pay it again to the loser.”

James E. Beers, for the appellant.

I. There is nothing in the whole case which establishes the allegation that Suydam “ played ” with the defendant; or' that defendant “won” any money of Suydam; or that Suydam “paid” any money to the defendant; or that defendant ever “ received ” any money from Suydam. And, as this action, is founded upon the statute against betting and gaming, it is necessary that these allegations should be proved, in order to bring the case within sections 9 and 14 of that statute. (1 R. S., p. 662, §§ 9, 14.)

II. The plaintiff in any event has no right of action against the defendant. The statute above cited, gives the right of action only to the person who shall play and lose, &c. It is a personal right, and cannot be assigned. The person who played and lost was Suydam. The plaintiff did not play—and whatever his rights may be, they are derived from Suydam, through the assignment made on the 24th December, 1857. The right of action in this case depends entirely upon the statute of “ betting and gaming,” and. unless this statute authorizes an assignment of a claim of this nature, the plaintiff has acquired no interest therein.

p. 643

III. The assignment made by Snydam to plaintiff, of Suydam’s interest, &c., is void for want of consideration and delivery.

IV. Whatever claim Suydam had against the defendant, was extinguished by the payment of the $70, and the execution of the receipt therefor. This paper was executed on the 11th December, and about two weeks prior to the date of the assignment from Suydam to plaintiff. It purports to be a receipt in full of all demands; and being in writing and not ambiguous, could not be varied or contradicted by parol, especially so by any statements made by Suydam, who was the person that signed it.

C. D. Miller, for respondent.

I. The receipt did not extinguish the claim which Suydam had on the 11th December, 1857. And because on its face it is seen that but $70 was received by Suydam, whereas the aggregate amount won and received by defendant was $1,736. It was but a mere receipt, and open to explanation. (Mead v. Steger, 5 Port., 498 ; l Greenleaf Ev., § 212, and cases referred to; also, § 305; Ensign v. Webster, 1 John. Cases, 145.) It was not in the nature of a contract. (Egleston v. Knickerbacker, 6 Barb., 458 ; Coon v. Knap, 4 Seld., 402.)

II. But, independent of the considerations presented in the foregoing point, which treat the matter as though it were but the ordinary case of account or debt, the statute entitled “ of betting and gaming,” nullifies the transaction, even conceding it to have been the intention of the parties that the $70 should be in full.

1. The playing was illegal, and whatever was paid by Suydam to the defendant, was paid contrary to statutory prohibition, and so long as it, or any part of it, remained in his hands, the statutory condemnation was upon it, and any attempt on the part of the defendant to acquire title to it, or of Suydam to confer title to it, was in direct contravention of the plain letter and spirit of the statute. All contracts to that end are void, says the statute, section 8. (Ruckman v. Pitcher, 1 Comst., 411; Storey v. Brennan, 15 N. Y. R., 524.)

III. It is manifestly one object of the statute to restore the money to the loser. He may sue a stakeholder for the money deposited before or after the determination of the event, even

p. 644

though paid over to the winner. (§ 9.) And it seems he may do so, notwithstanding such payment over was by his express assent and direction. (Ruckman v. Pitcher, 1 Comst., 411; 13 Barb., 556 ; Storey v. Brennan, 15 N. Y. R., 524.)

There is no ground to differ from the conclusions of fact found by the Referee.

The receipt in full of all demands, which the defendant made an unsuccessful attempt to explain, is not merely not conclusive against the plaintiff, but tends to support the assignor’s account of the transaction. The assignment to the present plaintiff was plainly sufficient and valid.

The Referee’s conclusion of law, that the money could be recovered, is correct. (Storey v. Brennan, 15 N. Y. R., 524.)

Judgment affirmed, with costs.