Schmitt v. Howell

10 Daly 290

• Court: New York Court of Common Pleas
• Decided: December 5, 1881
• Status: Published

Opinion

J. F. Daly, J.

[After stating the facts as above.]—Had the allowance of $54 been upon an unobjectionable claim, it is quite certain that we could not disturb the agreement on which plaintiff, Schmitt, gave the receipt in full. The question is whether in this form of action plaintiffs can undo the transaction. I think not. The effect of the agreement between the parties was the payment of the wager Schmitt had lost. At common law no action to recover back the money so paid would lie (Yates v. Foot, 12 Johns. 1). The action to recover back money lost in gambling and paid over, is given by statute, and must be brought under the statute. This is not such an action.

The plaintiff who settled with defendant might have refused to allow the wager debt, and to take less than the face of his demand, and could have sued then, as well as now, for the amount of his bill. If his anxiety to get $278.48 was so great as to induce him to settle his gambling debt, he must resort to any remedy which the statutes may afford, to re-open the transaction in respect to the latter, which, to use the language of the court in the case first cited, has been executed and ought not to be disturbed.

The judgment should be affirmed.

Van Hoesen, J., concurred.

Judgment affirmed.