McDougall v. Walling

48 Barb. 364, 1867 N.Y. App. Div. LEXIS 38

• Court: New York Supreme Court
• Decided: April 1, 1867
• Status: Published

Opinion

By the Court, Leonard, P. J.

The opinion of Judge Clerks in this case, when before him at special term, is entirely satisfactory.

The winner of money by betting or gaming has so much belonging to the loser. The winner cannot defend himself against the claim of the loser by virtue of the gaming or betting contract under which he acquired the money, because the statute says the contract is void. The winner has so much of the money of the loser to which he has no title. The winner is in the condition of one who has found a sum of money belonging to another. There is an implied contract to pay it to the loser, go when money has been obtained by fraud or violence, the injured party may waive the wrong, and sue as upon a promise, the law implying a promise from the moral obligation. The injured party has a choice of forms of action.

The statutes against betting and gaming demand a liberal construction. They are remedial, not penal.

I think the defendant’s counter-claim should be held to be a demand arising on contract. Whenever the loser chooses to bring his action for money lost by betting or gaming, in form ex contractu, the action is properly brought. The case of Meech v. Stoner, (19 N. Y. Rep. 26,) settles not only that the cause of action in such a case is assignable, but also that the demand for money lost at gaming is a debt. The same principles apply also to betting.

[New York General Term, April 1, 1867.

The judgment should be affirmed, with costs.

Leonard, Lames C. Smith and . Ingraham, Justices.]