Richter v. Empire Trust Co.
Decision Date | 13 August 1937 |
Docket Number | No. 85-94.,85-94. |
Citation | 20 F. Supp. 289 |
Parties | RICHTER v. EMPIRE TRUST CO. et al. |
Court | U.S. District Court — Southern District of New York |
Edward V. Broderick, of New York City, for plaintiff.
Harris Jay Griston and Louis Karasik, both of New York City, for defendant Frad.
Defendants Harold I. Thompson and William D. Frad move to dismiss the bill of complaint on the ground that it fails to state facts sufficient to constitute a cause of action against said defendants and for want of equity.
The plaintiff seeks to recover the sum of $36,620 paid to defendant Frad in satisfaction of a gambling debt. According to the allegations of the complaint, plaintiff and Frad played cards aboard a steamship en route from New York to San Francisco and "by the time said steamer reached the Port of San Francisco" the sum of $36,620 was claimed by Frad to be due. Plaintiff thereupon made and delivered his check in that sum to Frad. The check was drawn on the Continental Illinois Bank & Trust Company, a banking institution carrying on business in the city of Chicago, State of Illinois.
Thereafter, the check was delivered by Frad to the defendant Empire Trust Company in New York, and through said bank was presented for payment in Chicago. The check was paid, and the complaint alleges that the proceeds are now held by defendant Empire Trust Company, which has received notice of plaintiff's claim. The defendant Thompson is joined as a party because he claims an interest in part of the fund now held by the bank.
Plaintiff's bill of complaint prays for the following relief:
It is fundamental that on this motion to dismiss the complaint, the court cannot look beyond the allegations set forth in the complaint. But, for the purposes of pleading and proof, a Federal District Court will judicially notice "the law of any state of the Union, whether depending upon statutes or upon judicial opinions." Lamar v. Micou, 114 U.S. 218, 223, 5 S.Ct. 857, 859, 29 L.Ed. 94; Hanley v. Donoghue, 116 U.S. 1, 6, 6 S.Ct. 242, 29 L.Ed. 535.
Generally, in the absence of statute, neither party to a gambling transaction was accorded any relief, either at law or in equity, and the loser was unable to recover back any money paid to the winner. Meech v. Stoner, 19 N.Y. 26; Landley v. Fischer, 226 App.Div. 352, 235 N.Y.S. 368; Higgins v. McCrea, 116 U.S. 671, 685, 6 S.Ct. 557, 29 L.Ed. 764; White v. Barber, 123 U.S. 392, 8 S.Ct. 221, 31 L.Ed. 243. "Gambling contracts, being opposed to good morals and public policy, are not recognized by the courts." Matthews v. Lopus, 24 Cal. App. 63, 140 P. 306, 307. However, the general rule has in many jurisdictions been modified by statute. In California, in cases where the type of wager is not specifically declared a crime, money may be recovered from a stakeholder as long as the venture was in no sense executed, "and until executed both parties are given an opportunity for repentence and rescission." Matthews v. Lopus, supra. But the plaintiff in this case is not relying solely on the law of California for his remedy herein. A reading of the complaint would indicate that plaintiff bases his right of action principally upon the statute law of Illinois, the place where the check in question was made payable and where it was actually paid.
In the ninth paragraph of the bill of complaint, the plaintiff has set out Smith-Hurd Ill.Stats. c. 38, § 329 (section 131); paragraph 309 of chapter 38 of the Revised Statutes of Illinois. The effect of the statute pleaded is to render void and unenforceable any agreement made or check given where the consideration in whole or part is a gambling debt. This statute would have barred a recovery by Frad in a suit upon the check given by plaintiff. Moulis v. Owen, 1 K.B. 746.
There is another section of the Illinois statute, which is not pleaded in the complaint, but may nevertheless be judicially noticed by this court. Smith-Hurd Ill.Stats. c. 38, § 330 (section 132); paragraph 310 of chapter 38 of the Illinois Revised Statutes provides:
Although the Illinois statute is part of the penal law of that state, it is not penal but remedial in character in so far as it gives the loser the right to recover back the money lost at gaming. As the Supreme Court has said in Huntington v. Attrill, 146 U.S. 657, at page 667, 13 S.Ct. 224, 227, 36 L.Ed. 1123:
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