Fruchtman v. Klein

113 Misc. 522

Opinion

Bijur, J.

This action was brought to recover the sum of $815 claimed by plaintiff to have been loaned to defendant, under the following circumstances: Plaintiff and defendant together with others had been engaging in a gambling game at a private house. Plaintiff testified that he stopped playing at a certain stage of the game and went into another room. Shortly thereafter defendant, who had already borrowed $300 during the game, came to him and said: “ Let me have $200 more, and if I lose that I am going to quit. ’ ’ As plaintiff did not have $200 but only two bills of the denomination of $500 each, he loaned the defendant one of these bills. Under these circumstances, the plaintiff manifestly had knowledge that as to $200 of the loan and the $300 previously loaned, the defendant was borrowing the same for the pur pose of gambling with it, and upon the authority of Ruckman v. Bryan, 3 Den. 340, such a loan being for an illegal purpose is not recoverable. Fifteen dollars was borrowed for an entirely separate purpose.

Judgment must, therefore, be modified by reducing the same to $315 with appropriate interest and costs, and as so modified, affirmed, with $10 costs of this appeal to appellant.

Whitaker and Mullan, JJ., concur.

Judgment modified and as so modified affirmed, with ten dollars costs of this appeal to appellant.