205 Misc. 260 | City of New York Municipal Court | 1954
This is an action for the conversion of moneys. By consent the case was tried before me without a jury. Findings of fact and conclusions of law were waived.
The plaintiff is a bartender in a Long Island roadside restaurant. The defendant was a frequent customer, as he had been for years. On an evening in May, 1951, a little before dinnertime, the defendant entered the restaurant with ten.or twelve Irish sweepstake tickets in his hand. These he offered to sell to various persons about the bar. None would buy, and
The defendant told an unlikely story. He denied altogether that he had made a gift of the ticket but testified that he had left it with the plaintiff to “ hold ” after the latter had refused to buy, because he wanted to prove that this would be the winning ticket. If the defendant is to be believed he allowed the plaintiff to hold the ticket temporarily merely to convince the latter that this particular ticket would be the “ winner ”, perhaps in this way to make manifest his own prescience or perhaps so that the plaintiff might come to feel sorry that he had not availed himself of the opportunity to buy.
I find that the defendant arranged with the plaintiff to go to Ireland in order to collect the winnings in the plaintiff’s behalf, and to deliver to the plaintiff the first thousand dollars and one half of everything above that amount.
By way of interposing another obstacle to the plaintiff’s recovery, the defendant asserted at the trial that the ticket was never his but belonged to his wife. However, the evidence is against the defendant. When he undertook to sell the tickets
The important question to consider is whether the arrangement between plaintiff and defendant was illegal or contrary to public policy.
I think the case is distinguishable from Goodrich v. Houghton (134 N. Y. 115), for there the plaintiff and the defendant were partners or joint adventurers. Together they bought the lottery ticket and agreed to share the winnings with each other. The point of the Goodrich case is that a court will not meddle in a gambling transaction. It will not help one partner against the other for the same reason that it will not allow a recovery by the winner against the person who has conducted the lottery.
The law is well settled in New York and elsewhere that it is no defense to an agent who has converted moneys belonging to his principal that such moneys were the fruit of an illegal transaction (Woodworth v. Bennett, 43 N. Y. 273, 275-276; Wood v. Erie Ry. Co., 72 N. Y. 196; Leonard v. Poole, 114 N. Y. 371, 379; Ayew v. Hawes & Co., 250 App. Div. 596, 600 et seq., affd. 276 N. Y. 634; Murray v. Vanderbilt, 39 Barb. 140,152-153; and see Stone v. Freeman, 298 N. Y. 268, 271; Loughran v. Loughran, 292 U. S. 216, 228; McBlair v. Gibbes, 17 How. [U. S.] 232, and Judson v. Buckley, 130 F. 2d 174, 180).
"When the plaintiff arranged with the defendant to collect the Avinnings in Ireland, the lottery was over and the ticket and the Avinnings were the plaintiff’s property. There was no executory agreement between the plaintiff and the defendant to participate in an illegal transaction. The defendant has converted the moneys which he induced the plaintiff to appoint him agent to collect. It need hardly be said that it is undesirable to exclude the property of any person from the protection of the law merely because of its origin, and that a judgment producing such a result should be, whenever possible, avoided.
There remains to be considered the amount of plaintiff’s recovery. Before the institution of this action, the plaintiff’s then attorney wrote a letter to the defendant demanding $3,162.60. This may be the correct amount, but the plaintiff failed to introduce evidence at the trial showing precisely what sum of money the defendant collected. The defendant testified that he (or his wife, as he put it) collected about $5,000. Although the Avinnings were probably a little larger, in the absence of more exact evidence I cannot find that they exceeded $5,000. Under the arrangement between the parties the defend
Judgment may be entered in favor of the plaintiff and against the defendant in the sum of $3,000, with interest, as demanded in the complaint.