
    ARRIETA against MORRISSEY.
    
      New York Common Pleas ;
    
      General Term, July, 1866.
    -Pleading.—Complaint fob Monet lost at Plat.—Definiteness and Cebtaintt.—Appealable Obdeb.
    In an action to recover back money lost at play, the complaint is obnoxious to a motion that it be made more definite a.nd certain, unless it states the facts necessary to show clearly under which of the several sections, of the statute of betting and gaming the action was brought.
    Where there are several sections of a statute creating a cause of action, differing in their legal effect and in the remedies provided, and the complaint in an action under the statute is so drawn that it may include claims under more than one provision, the plaintiff may be required, on motion, to make it more definite and certain in this respect.
    In an action to recover money lost at play, ¡since the statute gives the action only for losses exceeding twenty-five dollars at one sitting, and requires it to be brought within three months after payment, the defendant is entitled to require the plaintiff to specify in his complaint the amount lost at each sitting, and the times of payment. It is not sufficient that these facts might be called forth by requiring a bill of particulars. (Per Cardozo, J.)
    An action to recover back money lost at play, is not an action for a penalty or forfeiture, within tho meaning of the provision of the Revised Statutes which gives a short mode of pleading in such cases.
    An appeal from an order refusing to require the complaint to be made more definite and certain, sustained, and the order reversed.
    Appeal from an order made at a special term, denying a motion to make tlie complaint more definite and certain, under section 160 of the Code of Procedure.
    The complaint contained two counts. In the first, it was alleged that during the months of August and September, 1863, the defendant, John Morrissey, kept a gambling establishment at Saratoga Springs, and that during such times the plaintiff, Pablo de Arrieta, at such establishment, made certain wagers and bets, which were, made to depend upon a game of lot or chance, commonly called “ faro,” which game of dot or chance, was under the management and direction of the defendant, at such .establishment. That the wagers and bets so made were lost by the plaintiff while betting on such game, and were won by the defendant, and amounted in the aggregate to nine thousand dollars, which sum was paid and delivered to the defendant, who, although requested, refused to return it to the plaintiff.
    The second' count, under similar allegations, asserted the losing by the plaintiff and winning by the defendant, of fourteen thousand dollars during the months of September and October, 1863, at a gambling house alleged to have been kept by the defendant in Eew York city. '
    Upon these counts and allegations the plaintiff prayed judgment for the retan of the sums mentioned, according to the statute in such case made and provided, with costs.
    The plaintiff moved at special term, before Judge Daly, that the complaint be made more definite and certain, so as to show the precise nature of the charges against the defendant, and particularly so as.to set forth the precise days on which the plaintiff claims to have lost any money by gambling, with ref-' erence to the days of the month, and the amounts claimed to have been lost on each occasion, or for other relief.
    
      George Owen, for the motion.
    I. The complaint is indefinite and-uncertain, (a.) “Faro” is a technical term. Whether wagers or bets made to depend upon it come within §§ 9 or 14 of the statute .against betting and gaming (2 Rev. Stat. [5th ed.], 925; § 14), cannot be ascertained without a clearer statement of its operations. The terms of “gambling establishment,” “game,” “lost,” “won,” and “paid and delivered,” would indicate losing at play, while the terms “ wagers and bets ” would indicate a loss depending upon the result of a pla.y.'- It is, therefore, impossible to tell whether the cause of action is under § 9 or 14 of the statute. (b.) If the cause of action is under § 14, it does not appear whether the moneys were lost at one or more sittings (2 Rev. Stat. [5th ed.], 925; § 14). (o.) Eor does it specify the times when, and the amounts lost on each occasion. This, is necessary for two reasons: 1st, to prevent surprise to the defendant, and, 2nd, because the cause of action is founded on the statute (Cole v. Smith, 4 Johns., 193). (d.) It cannot be ascer tained from the complaint what items the plaintiff will endeavor to prove on the trial. To make this apparent to the party and the court, is the object of § 160 of the Code (Decker D. Mathews 12 N. Y. [2 Kern.], 321). (e.) Even if this action was on a particular statute, it would not be definite, as it claims • a general sum for a number of items not clearly defined as a single cause of action (Walker v. Raskin, 12 How. Pr., 30; Forsyth v. Edmondson, 11 Id., 408; Clark v. Farley, 3 Duer, 645)
    , II. The precise nature of the charge is not apparent. There can be but one meaning to the word precise; it requires times, places, amounts, to be distinctly pointed out, to meet the understanding of the adverse party.
    III. It is submitted that no matter how clear a pleading may seem on a first reading, yet if its meaning upon reflection is doubtful, or the adverse party cannot clearly understand it, the office and intent of § 160 of the Code is to vest the court with a discretion to order it to be made more definite and certain, so it can be safely answered.
    
      Francis H. DyTcers, opposed.
    The motion was denied by the judge at special term upon the argument, upon the ground that by § 158 of the Code, an order for a bill of particulars was the proper remedy, if one was not furnished on demand; and from the order entered, an appeal was now taken to the general term.
    
      John Graham and George Owen, for the appellant.
    I. By § 142 of the Code, the complaint shall contain (among other things), “ a plain and concise statement of the facts constituting “ a cause of action, without unnecessary repetition.”
    If this section stood alone, the complaint could only contain a single cause of action. The article “ a ” would have that effect. By § 167, however, “ the plaintiff may unite in the same complaint several causes of action,” but they “must be separately stated.” The reason of that is obvious. The'defences to each cause of action may be distinct—one may be proper to be tested on a demurrer—another may be the subject of an issue, upon a denial—another may be, that the cause of action has been released, or satisfied by payment. The policy of all pleadings is, to have the cause of action or defence spread upon the record, so that a demurrer can be interposed if it is thought advisable.
    II. By the statutes of this State it is provided that “ the sum or value of twenty-five dollars or upwards,” lost at “ any time or sitting,” may be recovered within three calendar months from payment or delivery (2 Rev. Stat., 662, 663, § 14). Where the right to recover builds itself upon this statute, the elements of the statutory cause of action should appear on the face of the complaint. But for- the statute there could be no recovery at all, and the sum or value of twenty-five dollars and upwards must be lost or delivered at one time or sitting, to constitute a cause of action. These causes of action, where they are more than one, can be included in the same complaint, but, by § 16T of the *Code, they must be stated sépai-ately, i. e., there must be as many counts as there are causes of action. These principles are illustrated and sustained in Cole v. Smith (4 Johns., 193). As will be seen by that case, the former statute on this subject prescribed the form of action for the loser, but not the informer.
    III. We do not combat the doctrine that, where many items of property are th'e subject of a single sale, the price or aggregate amount can be alleged, as the debt, in a single count, and that a bill of particulars is the proper course, if the defendant wishes more light. That is analagous to a loser at play, recovering, under one count, the aggregate of all his losings at any time, or any one sitting. While he can make one amount of all the losings- at any one time or sitting, and so allege it in his complaint, he cannot aggregate the losings of any number of-independent sittings, and include it in a single count. The aggregate of. all the items of property sold at one time, and the aggregate of all the monies lost at one sitting, constitute and represent a single transaction, and so, a single cause of action.
    IY. The mistake at special term arose from supposing that the words at the close of § 158 of the Code, “ the court may in “ all cases order a bill of particulars of the claim of either party “ to be furnished,” were intended for a case -like the present.
    These words were not designed to abolish pleadings, but to give the court a further power over them; that is, where the pleadings are as specific as pleadings ought to be, in setting forth a claim, the court nan require them to be made more specific still, by a bill of particulars. •
    Y. A motion to make the complaint more definite and certain was the proper remedy for the defendant, as will appear by the following authorities (Blanchard v. Strait, 8 How. Pr., 85; Forsyth v. Edminston, 11 Id., 408; Waller v. Raskin, 12 Id., 30; Clark v. Farley, 3 Duer, 645; Harsen v. Bayard, 5 Id., 656).
    YI. There can be no doubt about the appealable character of the present order. The right to a proper complaint, both involves the merits of the action, and affects a substantial right within subd. 3, of § 349 of the Code. The general term of the Superior Court so assumed within the last six months, in the case of an aTiswer (as undeniable law), in a matter presented to it from the office of the counsel for the present defendant (Mattisons v. Smith, 19 Abb. Pr., 288).
    
      Francis H. Dykers, for the respondent.
    I. The order of the special term is not an appealable order.
    1. The only subdivision under § 349 of the Code, under which the order could be classed, is subdivision 3, which provides that an order of a single judge may be appealed from “ when it involves the merits of the action, or some part thereof, or affects a substantial right.”
    2. The motion having been denied by the judge at special term, on the ground that the defendant’s remedy was to call for a bill of particulars under § 158, when he could have obtained all the particulars sought for on the motion, the question i&' a mere matter of practice, and it is well settled that orders affecting mere matters of practice are not appealable (Burhans v. Tibbits, 7 How. Pr., 78; St. John v. West, 4 Id., 332; Tallman v. Hinman, 10 Id., 90). As the defendant could have obtained all he seeks by this motion, under a demand for a bill of particulars, the order denying the motioh cannot be said to involve the merits, or affect a substantial right.
    II. If, however, the court should be of 'opinion that the order is an appealable one, then the order of special term was properly made, and should be affirmed. The matters in which the complaint is sought to be made more definite and certain, are not substantive facts going to make up the cause of action.
    1. Sections 8 and 9, of article 3, title 8, chapter 22, of the Revised Statutes, are as follows:
    “§ 8. All wagers, bets or stakes made to depend upon any “ race, or upon any gaming by lot or chance, or upon any lot, “ chance, casualty, or unknown or contingent event whatever “ shall be unlawful. All contracts for or on account of any money “ or property, or thing in action so wagered, bet or staked, shall “ be void.
    “ § 9. Any person who shall pay, deliver, or deposit any “ money, property or thing in action, upon the event of any “ wager or bet herein prohibited, may sue for, and recover, the “ same of the winner or person to whom the same shall be paid “ oy delivered, and of the stakeholder or other person in whose “ hands shall be deposited any such wager, bet, or stake, or any “part thereof, whether the same shall hare been paid over by “ such stakeholder or not, and whether any such wager be lost “ or not.”
    If these sections give a right of action, the complaint in this suit, following as it does the.exact language of the statute, cannot be complained of as not containing a sufficiently distinct statement of the cause of action.
    2. There is no limitation in these sections as to the time within which the action must be brought, nor the amounts for which it may be brought.
    3. These sections in these respects are different from § 14 of the same act, where a party must lose at least twenty-live dollars at one sitting, and must bring his action within three months from the time of the loss, or he is without relief; and it was probably a belief on. the part of the defendant here that this action was brought under § 14 which made him suppose that the facts which he seeks by his motion to have inserted in the complaint formed a necessary part of the facts constituting the cause of action.
    4. If therefore §§ 8 and 9 give a cause of action, and .the complaint is properly framed under them—even though the facts of the case,.as they shall appear on the trial, should show that the complaint should have been framed under § 14, that is no ground for interfering with the complaint now; for no other facts appear now but what are stated in the complaint.
    III. The distinction between §§ 8 and 9 and § 14 is; that where a person bets on a race, or on a game which, is exclusively a game of lot or chance, and at which one party performs the act constituting the game of lot or chance, or in other words plays the game, and the other party only bets, such betting is within § 8 :—of this class are “ faro,” “ roulette,” “ three card monte.” Whereas the games contemplated by § 14 are games which are not games exclusively of lot or chance, but games in which the result is attained to a certain extent by skill, and at which there are several hands or sides, and at which games the party losing has a hand or plays "the game, and at which games betting is rather an incident to than a necessity of the game', such as whist, all fours, euchre, &c. The first kind of games are those selected by professional gamblers—the last are those more frequently found in private society, and perhaps this may be one of the reasons why the legislature put a limit to the recovery of money lost at the latter kind of games.
    IY. The uniting together several sums of money lost at different times in the same claim, where all the circumstances attending the loss of each sum are the same, is not the uniting of several causes of action. 1. The action given by the statute to recover money lost in this way is the action of debt or assumpsit (3 Rev. Stat., chap. 8, title 6, art. 1, § 1, 5 th ed., 783). 2. In debt or assumpsit it is always permitted to unite several sums as forming the elements of one account, and it would be bad pleading to declare on each item separately.
    Y. The remedy the defendant should avail himself of, is to demand a bill of particulars under § 158 of the Code, and if a sufficient bill is not furnished he may apply for a further one. 1. The matters called for can be obtained by á bill of particulars (Code, § 158; McKinney v. McKinney, 12 How. Pr., 22). 2. The matter sought to be made a part of the complaint would be in effect a recital of the facts by which the claim must be established, or at least the embodiment of a bill of particulars in the complaint (Sloman v. Schmitt, 8 Abb. Pr., 5 ; Common Pleas, General Term, Brady, J., St. Johns v. Beers, 24 How. Pr., 377). 3. The cases to which a motion to make more definite and certain apply are only those where some allegation of a material matter is left out, and not where the matter sought for is simply a detailed account of the plaintiff’s claim (compare §§ 158 and 160).
   Cardozo, J.

It is impossible to say positively, upon the complaint, as drawn, whether the plaintiff bases his complaint upon § 9 or § 14 of the statute against betting and gaming (2 Rev. Stat. 4th ed., 72).

The counsel for the respondent says in his points':—“ The dis- “ tinction between §§ 8 and 9 and 14 is, that where a person “ bets on a race or on a game, which is exclusively a game of “ lot or chance, or in other words, plays the game, and the other “ party only bets, such betting is within sections 8 and 9. Of .“this class are ‘faro,’ ‘roulette,’ and ‘.three-carded monte,” “ whereas the games contemplated' by .§ 14 are not games exclu- “ sively of lot or chance, but games in which the result is at* “ tained to a certain extent by skill, and at which there are “ several hands or sides.” Assuming, without, however, deciding this to be a correct exposition of the statute, I think that if the plaintiff meant that the money was lost by betting on games of faro,” and that that, game is purely one of a character at which but one person plays, the complaint should contain averments plainly showing that to be the state of facts, and failing to do so, may well be required to be made more definite and. certain.

I am obiged to confess that I do not know that fa.ro ” is exclusively a game of chance, or that but one person plays at it, and I see nothing in the present complaint which informs me that such is the fact. It is alleged that the “ bets uTere made to depend on a game of lot or chance,” but that would be equally true, whether the game was exclusively a game of lot, or partook of a mixed character of chance and skill. ETor does the . averment that the game of lot or chance was under the man- agement or direction of the defendant ” convey to my mind anything more than that the pleader meant to say that the defendant .was the.proprietor or manager of the establishment. It is not too much to require the plaintiff, who declares himself a violator of the law, and of honor too, to make his complaint in clear and unmistakable language, and to use such distinct and accurate expressions, that the court can understand upon which section of the statute the plaintiff rests his demand ; and 1 do not feel any disposition to relax the strict rules of pleading in favor of such a person and such a claim. ETo argument that the action is brought under section 9 can be drawn from the averment that the money lost was “ paid and delivered ” to the defendant, because those words are used in both sections 9 and 14 of the statute, and manifestly would be applicable to any complaint in which the plaintiff meant to allege that he had paid the amount of the bets he had lost.

Tliat it cannot be clearly and certainly understood what cause of action,—that is, whether arising under § 9, or under § 14,—the plaintiff has set up in his complaint, is a sufficient reason for requiring the pleading to be made more definite and certain.

» Moreover*, as the pleading is to be taken most strongly against the plaintiff who, by proper averments, could have made it clear, I think enough has been said to show that the defendant might treat this complaint as bemg framed under § 14; and if this be so, it is clear that there is in each subdivision or count more than one cause of action. Each time or sitting at which a loss occurred formed a separate cause of action, and it is obvious that each count of this complaint refers to at least two times or sittings. The causes of action belong to the same general class, and therefore may be joined in one complaint, but they must be separately stated (Code, § 167).

And this is especially proper here, because if at any sitting, the loss does not amount to twenty-five dollars, there could be no action maintained for the amount lost at that sitting. So if the actions were not brought within three months, after the payment there could be no recovery. It is plain, then, that the defendant might have defences to some of the causes of action which he could not plead as to the others, and as the defendant is not to be permitted to answer a bill of particulars, it seems to me that unless the complaint be drawn properly, he may be unable to avail himself of all the defences to every part of the claim to which he may be entitled. At all events it would be throwing upon the defendant the burthen of separating in his answer the supposed causes of action, and making his defences to each according to circumstances, unless,—which we cannot know,—he has to each of the claims the same defences. I do not think that that should be done. It would be to shift from the plaintiff to the defendant the burthen of making a good pleading,,which, in the first instance, rests on the former.

In any view, therefore, of the complaint, I think the defendant properly moved to make it more definite and certain (Clark v. Farley, 3 Duer, 645 ; Harsen v. Bayard, 5 Id., 656).

The statute cited by the plaintiff’s counsel (3 Rev. Stat., ch. 8. title 6, art. 1, § 11, 5th ed. 783, or see 2 Rev. Stat., 722, 4th ed.) has no application. This suit is not brought either for a penalty or forfeiture, and it is necessary that the plaintiff’s complaint should be special (McKeon v. Caherty, 1 Hall, 300; Moran v. Morrissey, 18 Abb. Pr., 131; Langworthy v. Bromley, 29 How. Pr., 92).

I am for reversing the order appealed from.

Daly, J., dissented.

Brady, J.

Assuming the complaint to be sound, and that the various expositions by Judge Daly are correct in reference to the law governing complaints in actions of this character, nevertheless the Code, § 160, applies to them. It has been held (Betts v. Bache, 14 Abb. Pr., 279) that a' complaint framed as suggested by Judge Daly is deficient in certainty; and the court, per Robebtsow, J., says “ The authors of the Code un- “ 'doubtedly intended to require parties in their pleadings to “show generally that they had a good cause of action punless “ the adverse party complained of not being sufficiently ntiti- ■ “ fied of the particular transaction, the remedy for the first “ being by a demurrer, and the second by a motion.” I understand that case to be a clear intimation that the court would, in such an actibn as this, upon a general allegation of the loss of money contrary to the provisions of the statute against gaming and betting, require the plaintiff to be more definite iii the statement of his claim. The remedy sought does not affect the form of the complaint, and therefore it is not perhaps necessary to consider the sufficiency of that paper as to the cause of action itself. The question is whether it should be made more definite’ and certain, and I think, as there are two sections of the statute differing, in their legal effect, and the remedies provided, the plaintiff should be required, when called upon, to make his complaint more definite and certain, if the cause of action as stated may include claims under both those sections. If the plaintiff is unable to comply with the order of the court, it may be modified on a proper application.

I concur, therefore, with Judge C-aedozo, that the order of the special term should be reversed.

Order reversed.  