156 N.Y.S. 700 | N.Y. App. Div. | 1915
Lead Opinion
The action is brought by the assignee of one Madison Foster to recover certain sums deposited in defendant bank by said Foster.
The first counterclaim attempts to set up a cause of action in favor of defendant and against plaintiff’s assignor, based upon a statute of Tennessee. This statute is thus alleged in the answer:
“Sec. 3166. 'Gaming contracts.— Any sale, contract or agreement for the sale of bonds, stocks, grain, cotton, or other produce, property, commodity, article or thing, for future delivery, where either of the contracting parties, buyer or seller, in [is] dealing simply for the margin, or on the prospective rise or fall in the price of the article or thing sold, and where either of the said contracting parties have had no intention or purpose of making actual delivery or receiving the property or thing in specie, shall be deemed, and is hereby declared, gaming ’ (1883, ch. 251, sec. 1).
“Sec. 3161. 'Any person who has paid any money, or delivered anything of value, lost upon any game or wager, may recover such money, thing or its value, by action commenced within ninety days from the time of such payment or delivery.’
"Sec. 3162. ' Any other person may after the expiration of the ninety days, and within twelve months thereafter recover the amount of such money, thing or value (sic), by action for the use of the wife; or if no wife the child or children, and if no child or children, the next of kin of the loser.’
“ Sec. 3163. ' And after the expiration of the time prescribed in the last section and within twelve months, thereafter, any creditor of such losing party may, by garnishment or action recover the amount of such money, thing or its value in satisfaction of so much of his credit.’” (See Shannon’s Code of Tennessee, 1896, pp. 727, 730, 731.)
This statute is distinctly opposed to the public policy of this State on the question of buying and selling merchandise for future delivery. The rule in this State as at common law is that such a contract is not invalid because it is the intention of
If these allegations can be fairly construed as stating that Baine agreed to sell to or buy from Foster cotton to be deliv
I do not, however, so read the counterclaim. The pleader either by inadvertence or by intention (it is difficult to say which) has avoided alleging in plain language that Raine and Foster were engaged' in buying and selling cotton futures to each other as opposing parties in contracts for sale and purchase. The allegation is that they were "engaged in certain transactions * * * with reference to the purchase and sale of alleged contracts for the future delivery of cotton.” This may mean many things besides the relation of purchaser and seller. The pleader should plainly and without indirection allege just what the relation was between Raine and Foster with reference to the dealing in cotton futures. As the pleading is drawn Foster may or may not be liable to repay the money said to have been lost by Raine, at common law or even under the Tennessee statute.
The second counterclaim alleges knowledge on Foster’s part of the diversion of the defendant’s money by Raine, and is for that-reason sufficient.
The order appealed from is, therefore, so modified as to sustain the demurrer to the first counterclaim and to overrule the demurrer to the second counterclaim, without costs to either party in this court, and with leave to the defendant to amend its answer within twenty days.
Ingraham, P. J., and Clarke, J., concurred; Smith and McLaughlin, JJ., dissented in part.
Dissenting Opinion
I agree with the court that the second counterclaim contains a valid set-off to the plaintiff’s claim. Raine appropriated the moneys of the bank and gave them to Foster, who had knowledge of the fact that the moneys so received by him were the property of the bank. This clearly raises an implied promise
I am also convinced that the first counterclaim is sufficient as an offset to plaintiff’s claim. This counterclaim alleges that these moneys of the bank were given by Raine to the plaintiff’s assignor in furtherance of gambling transactions between Raine and Foster.
In Causidiere v. Beers (1 Abb. Ct. App. Dec. 333) the head note reads:
“ One who wins from a clerk, by gaming, the money of his employer, is liable to the employer in an action for money had and received.
“Where one receives the money of another, and has not the right conscientiously to retain it, the law implies privity, and a promise to repay.”
The opinion in part reads: “ The plaintiff was not known to the defendant in the transaction by which the money changed hands. He did not deal with the plaintiff, nor was he aware that the money which he won from Delonne was the money of the plaintiff until just before the commencement of the action. There was no actual privity between them. In order to maintain the common count for money had and received, however, it is not always necessary there should have been an express privity of contract between the plaintiff and the defendant. There need he no privity of contract except that which results from one man having another’s money, which he has not a right, conscientiously, to retain.”
This rule of law asserted by the Court of Appeals and never questioned controls this case, if I am right in my premise that the money was lost by Raine to Foster in a gambling scheme. That premise is questioned in two particulars: First, it is asserted that the counterclaim in question does not allege a gambling scheme. It alleges that Foster and Raine, the president of the bank, engaged in certain transactions “with reference to the purchase and sale of alleged contracts for the future delivery of cotton, otherwise known as cotton futures.” It further alleges in paragraph 5 that all of said transactions “ dealt simply in the prospective rise and fall in the price of the said cotton, and with no intention or purpose of making actual
Under these allegations Foster and Raine were wagering upon the advance or fall in price of cotton; no other interpretation is possible. This contract then is squarely within our statute, and made illegal thereby.
It is further asserted that the counterclaim alleges a joint transaction wherein Foster and Raine were acting together in gambling with some third party unnamed. If this were true it is difficult to see what better right Foster could have with the defendant’s money transferred by Raine. Both are engaged in the illegal transaction in which Raine has transferred the bank’s money, and within the authorities cited the law implies a promise for its return. But such is not the fair interpretation of the pleading. The counterclaim asserts that Foster engaged in these gambling transactions with Raine with reference to the purchase and sale of cotton futures, and that in those transactions he paid to Foster and received from him various sums set forth in Schedule “A” annexed to the answer. It is further alleged that as the result of said transactions with said Foster, the said Raine sustained large financial losses, not that the said Raine and Foster sustained large financial losses. Further, in the 5th paragraph of the answer, as before quoted, it is stated that Foster and Raine dealt simply in the prospective rise or fall in the price of cotton, with no intention of making actual delivery, “and that no actual delivery of the said cotton was ever made by the said Foster or received by the said Raine at any time.” If, as is insisted, a joint enterprise was alleged wherein Raine and Foster together gambled with some third party, the allegation that no actual delivery was ever made by said Foster or received by said Raine, is entirely' without significance. Undoubtedly the facts might have been more plainly alleged, but enough is alleged in my judgment from which a fair inference can be drawn that Foster and Raine were gambling with each other, and that the moneys of the defendant paid by
In this view of the case it is unnecessary to consider the question whether the plaintiff by suing in this State can' have the benefit of an offset which would be clearly valid in the State of Tennessee, where both parties resided and all the transactions occurred.
McLaughlin, J., concurred.
Order modified as stated in opinion, without costs to either party, and with leave to defendant to amend as stated in opinion. Order to be settled on notice.
See Penal Law. §§ 991, 994, 995.— [Rep.
