
    David Rockwood, appellant, v. Frank Oakfield, respondent.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 17, 1886.)
    
    1. Brokers—Wager contract, void.
    Whore a party places money with a broker under a contract that he shall purchase oil, the intention not being that the oil shall bo purchased in any event but to speculate on the rise and fall of the market value, the contract is a mere wager and void.
    2. Money lost in gaming—Common law—Statute.
    By common law money lost in gaming could not be recovered by the loser. By statute a party depositing any money, property, or thing in action on the event of any wager or bet may sue and recover the same from the stakeholder.
    8. Stakeholder—Who may be regarded as.
    Where a broker, advised of the unlawful design of the contracting parties, receives and transmits funds from the one to the other to effectuate a wager contract, he may be regarded as a stake-holder.
    4. Penalty—Mot recoverable in action on contract.
    Money paid as a stake under a wager contract cannot be recovered by an action on contract, the plaintiff must proceed under the statute.
    5. Penal Code, §§ 386, 340, 725. 726.
    The provisions of the revised statutes are not inconsistent with sections 336 and 840 of the Penal Code, and are not repealed by §§ 725 and 726.
    Appeal from a judgment dismissing the plaintiff’s complaint entered upon a special verdict rendered at the Cattaraugus circuit. The cause of action is set out in the complaint in these words: “That on or about the month of November, 1882, the defendant, assuming to act as an oil broker, undertook and agreed with the plaintiff to buy for him two thousand barrels of crude oil or petroleum, upon plaintiff paying to him a certain part of the purchase price, to wit: the sum of §200; and hold the same for him, and that said plaintiff should pay to defendant a certain sum per barrel, of the oil denominated Marquis, the defendant should finally deliver said oil to plaintiff upon his paying the market price therefor, and the commissions for purchasing the same.”
    “That thereupon, in pursuance of such agreement, plaintiff paid to defendant the sum of $500 on such purchase price, and as margins aforesaid, which was all that was demanded by defendant thereon, and that thereafter the plaintiff requested and demanded of the defendant that he deliver said oil or return money so paid therefor; but the defendant refused to deliver said oil or return or repay said money so paid thereon, and the plaintiff was informed by defendant and believes he could not perform and fulfill such contract nor deliver said oil.”
    That plaintiff kept and performed said agreement on his part, and that by reason of the premises he has sustained damages in the sum of $550, with interest from November 6, 1882. Judgment was demanded for $550, with interest from November 6, 1882. A special verdict was taken upon the following questions of fact:
    
      First. Was it the contract and understanding that the purchases were on margins, no property to be delivered, but that the settlement should be made by receiving a profit if the oil went up or sustaining losses if it went down ?
    
      Second. Did the defendant deal with the plaintiff as a broker ?
    
      Third. Did the' plaintiff know that the dealings, which were had with his-money, were through another person or persons, who weré brokers elsewhere than in Olean ?
    The jury answered the first and second questions in the affirmative and the third in the negative.
    The case does not contain the evidence, but states that other questions of fact were established by the testimony, among them the following:
    That the defendant had at the time of the transaction set forth, engaged to some extent in the business of taking orders and advances, and deposits of money, for the purpose of purchasing crude oil or petroleum on margins, for and in behalf of persons claiming to speculate in the oil market, and by transmitting such orders and money to an oil broker in the state of Pennsylvania, named Wright; that on the sixth day of November, 1882, the plaintiff desiring to speculate in the oil market, gave defendant an order to purchase on margins, 1,000 barrels of oil; and paid in advance to the defendant, the customary margin of $200, with the understanding, that further sums as margin should be paid to defendant in case the market price of oil should advance, and the further understanding that no oil should, in fact, be delivered in any event, and that in accordance with the custom of the market in case of such purchase, when the venture should be sold, either on the plaintiff’s order or under the rules of the market, a settlement should be had, and if the sale had been made at a profit he should receive the profit, less the usual commission; or submit to the loss if the venture was sold at a loss. Five hundred and fifty dollars was placed in the hands of the defendant in pursuance of this understanding.
    
      F. W. Kruse, for the appellant; Boulles & Warring, for the respondent.
    In all these transactions the plaintiff dealt with the defendant only as his broker so far as was known or intimated to the plaintiff, but as a matter of fact the defendant transmitted the orders and all the money to said Wright to make the purchase. On the 24th day of November the market price of oil declined, and all the ventures were sold at a loss, neither the plaintiff nor the defendant receiving or realizing any of the avails of said sale nor any part of the money so put up as margins. The trial court dismissed the complaint upon the ground that the complainant alleged a valid and binding contract between the parties, 'and a breach thereof on the part of the defendant; that the contract proved was fraudulent and void; that there could be no recovery in this action for the stake money put up, for the reason that the cause of action, as set forth in the complaint, was in affirmance of the contract and not in repudiation of the same. Leave was given the plaintiff to bring any action within six months after the iudgment, if he was so advised.
   Barker, J.

Both parties admit that the agreement entered into between the parties was a gaming contract, and that its validity is to be determined by the laws of this state. This mutual concession is doubtless made in view of the special verdict, that the plaintiff did not know that the contract which he had with the defendant was to be carried out through other brokers who resided out of the state of New York. We may, therefore, determine the legal questions presented on this appeal on the supposition that the contract between the parties was made and was to be performed within this state. The real intent of the parties being to speculate in the rise and fall of the price of oil, and the same not to be delivered in any event, but one party was to pay to the other the difference between the contract price and the market price of oil on the day fixed for executing the contract. The whole transaction, was nothing more than a wager, and was null and void. Bigelow v. Benedict, 70 N. Y., 202; Story v. Salomon, 71 id., 420 ; Quinn v. Williar, 110 U. S., 499. The attempt to disguise the transaction under form of a valid contract, does not exempt the defendant from the decree of the statute pronouncing it invalid upon the facts, as stated; the defendant must be regarded as privy to the unlawful scheme, and has voluntarily connected himself with the immorality of the contract, so as to be affected by it, and is in no position to assert that he has been an innocent instrument by which the plaintiff’s money was transmitted to a third party, for the purpose of carrying out an unlawful venture. Where a broker is advised of an unlawful design of the contracting parties, and brings them together for the very purpose of entering into an alleged agreement, he becomes particeps criminis, and may be regarded as a stakeholder of the sum of money put up by the plaintiff, although it was with the consent of the latter put into the hands of a third party before the result of the venture was ascertained.

By the common law money lost and paid in betting and gambling could not be recovered by the loser, but the statute has given a remedy to the loser, and he may recover the money from the winner or stakeholder. It reads as follows : ‘ ‘Any person who shall pay, deliver or deposit any money, property or tiring 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 or delivered, and if 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 have been paid over by such stakeholder or not, and whether any such wager be lost or not. 3 R. S. (7th ed.), 1962, § 9. Ruckman v. Pitcher, 1 N. Y., 392; Storey v. Brennan, 15 id., 524; Mahoney v. O’Callaghan, 38 Sup. Ct. (J. & S.), 461.

By force of the statute the plaintiff’s title to the money was saved to himself, and as the part performed by the defendant in carrying out the unlawful scheme was not innocent, he is made liable in a proper action for the money which came into his hands in furtherance of the immoral scheme. But the plaintiff’s cause of action, as set forth in his complaint, was based upon the contract as a valid one, and the right to recover damages for its non-performance; no other construction can be placed upon the complaint. The agreement between the parties as therein set forth, was a valid one in terms. An executory agreement to sell property, and to deliver the same at a future day, which the-seller did not own at the time the contract was made, if the same is in other respects valid, it is not upon its face a wager contract within the meaning of the statutory provision declaring such contracts void. In absence of evidence to the contrary, it will be presumed that the contract was made in good faith, with the intent on the part of both parties to perform it. Bigelow v. Benedict, 70 N. Y., 202 ; Story v. Salomon, 71 id., 420; Quinn v. Williar, 110 U. S., 499.

It must be determined by the proofs whether the parties entered into the contract in good faith with an intention of having the same performed by a delivery of the property. If the party who has lost the stake wishes to recover the same from a guilty participant, he must repudiate the contract and sue for the stake, which he may recover back as a penalty. The plaintiff must disaffirm the contract and sue under the statute, which he has not done in this case. Nichols v. Lampkin, 7 N. Y., Civil Pro., Rep., 1.

The respondent had made the point in his printed brief, that the provisions of the Revised Statutes which Ave have quoted are repealed, and cites sections 725 and 726 of the Penal Code. The provisions of that code contained in sections 336 and 340 are not. inconsistent with the Revised Statute, and do not relate to the same object, and Ave are of the opinion that they remain in full force and effect.

Judgment affirmed.

Smith, P. J., Haight and Bradley, J.J., concur.  