1 Abb. Ct. App. 333 | NY | 1865
By the Court.
[After staling the facts.]— Meech v. Stoner, 19 N. Y. 26, determines that money lost in gaming is assignable as other choses in action, and the right to prosecute given to the losing party is not a mere personal privilege which is unavailable by any one to whom he may have transferred the claim. The principle upon which the decision rests is, that the transaction is utterly void, and the winner obtains thereby no title in himself to the money won; but the inability of the loser to recover the money back is based upon another maxim of the common law, which withholds remedial process from the offending parties, and when both are equally guilty, the better condition is that of the defendant. The learned judge who delivered the opinion, thinks section 14 of the statute, which literally gives the right of action to the loser, if exercised within a given time, does not so much create a right of action as it removes an obstacle which the common law placed in the way of his recovery. He quotes in
It remains to consider what are the relations of the plaintiff to the defendant in respect of this money, and whether they are such as give him a right of action to recover back what was undoubtedly his own.
The plaintiff was not known to the defendant' in the transac-. tion 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 be no privity of contract except that which results from one man having another’s money, which he has not a right, conscientiously, to retain. Chit, on Cont. 605, 5 ed. The defendant has obtained the plaintiff’s money by a process -condemned by law as illegal and unjust, and can have no conscientious or equitable claim to retain it. He parted with nothing when he received it, and should he restore it to the true owner, he is no worse off than he was before the transaction with Delonne. The most favorable point of view in which he can be regarded is that of one who has accidentally found the money of another,
The judgment of the common pleas should be affirmed.'
All the judges concurred, except Potter, J., absent.
Judgment affirmed, with costs, and ten per cent, damages.