
    MICHAEL MAHONY, Plaintiff and Respondent, v. ROBERT O’CALLAGHAN, Defendant and Appellant
    Before Monell, Ch. J., and Curtis, J.
    
      Decided January 4, 1875.
    WAGER.—Action to recover against the stakeholdeb eor the. MONEY DEPOSITED WITH HIM.
    Under the statute, the action lies against the Stakeholder, whether he has paid over the money or otherwise.
    It is well settled that if the money has been paid over to the ■ winning party by the stakeholder, with the authority and consent of the depositor, yet it may be recovered in an action by the latter from the stakeholder (Ruckman ®. Pitcher, 1 N. T. R. 392; Same • case, 20 Id. 1; Storey ®. Brennan, 15 2f. T. 524).
    In the case at bar, the court submitted the case to the jury, who found a verdict for the plaintiff. If there was error in this submission, it was error against the plaintiff, who was entitled under the facts proved to an absolute direction of the court to the jury for a verdict in his favor. There being no error that was prejudicial to the defendant, the verdict and judgment is sustained.
    Appeal from a judgment.
    The action was to recover a sum of money deposited, by the plaintiff with the defendant, as stakeholder, being the amount of a wager between the plaintiff and one McGinness, upon the result of a horse race.
    One of the defenses was, that before the commencement of the action, the defendant, with the assent, and by the direction of the plaintiff, paid the amount of the wager to McGinness.
    It appeared from the evidence, that after the race a dispute arose as to whether the horse which won was. the horse upon or against which the bet was made, and the plaintiff told the defendant not to give up the money until McGrinness satisfied him on that subject.
    Upon the part of the defense, the defendant testified that after the race, the plaintiff said he was willing the money should be paid to McGinness, if he, McGrinness, made an affidavit as to the horse, and if he made an affidavit, to pay him the money. It was to be an'affidavit that it was the right horse that ran. He further testified, that “ McGrinness did furnish me with such affidavits ; they were brought to me before I paid the money; I would not pay until I got them ; I showed them to the plaintiff; I had not then paid the money.” Upon his cross-examination, he said that he paid the money to McGrinness, on the affidavit.
    Plaintiff’s counsel here asked the witness for the affidavits. Witness produced them, and they were submitted to the court, by both parties, to be read by the court.
    The case does not show that the affidavits were read in evidence, or offered in evidence, or what disposition was made of them by the court. But the witness frequently alluded to the affidavits.
    At the close of the evidence, the plaintiff moved for a verdict, which was refused “on the ground that the testimony in respect to the affidavit, raised some issue of fact.’ ’
    The court submitted to the jury the question, whether the money had been paid over by the authority or direction of the plaintiff.
    The court in charging the jury, said, that the defendant claimed he had the right to pay over the money, in case a certain affidavit was made, and it would justify the defendant, if that affidavit came up to the purpose which he claimed for it. “ If it does, it will then show that he has paid the money over properly ; if it does not, whether he has paid it or not, is of no account.”
    The court further charged “that to justify the defense in paying the money over, they must show that the affidavit was such an affidavit as the plaintiff says if he would make, he might pay it. Now, the affidavit refers to a statement. There is no statement in it about this horse ; there.is no identification about it; I think there is some doubt about it, but my impression is rather against the plaintiff’s counsel. One of the witnesses says that the affidavit was shown to Mr. Loonie. I am inclined to think that is so. Our duty is to stick as closely as we can to the truth. Assume that Mr. Loonie saw it, yet unless that affidavit was such an affidavit as comes up to what they promised to do, why then, whether he paid the money over on his own account or not, if he did, it is his own wrong. That is the importance that is to be attached to the affidavit. ■
    “ The affidavit is too vague and uncertain to pay money on. It is too vague and uncertain. I am speaking of the affidavit, for I leave to you the conclusion of whether the money was properly paid, but the point of the affidavit is, that it is authority to justify the payment or not; if it does not justify the payment, then they had no right to make it.”
    The defendant’s counsel excepted to the comments of the court upon the affidavit, and requested that the affidavit go to the jury, which the court refused, and the defendant excepted.
    The defendant also excepted to the court’s charging the jury as to the contents of the affidavit, “for the reason that it has not been put in evidence.”
    The plaintiff bad a verdict, and upon judgment being entered, the defendant appealed.
    
      J. H. V. Arnold, for appellant.
    
      E. D. McCarthy, for respondent.
   By the Court.—Monell, Ch. J.

The bill of exceptions in this case is so loosely made up, that it is difficult to determine whether the affidavit commented on by the court, was or was not in evidence. It does not seem to have been read or offered; nor does it. appear what ruling was made upon it, when it was handed to the court “ to be read by the court.” Yet it was frequently alluded to by the witnesses, and by the court; and was the subject of pointed comment and criticism. If it was not in evidence, then all reference or' allusion to it, by witnesses, court or counsel, was improper ; and the learned judge erred in submitting any question arising upon it, to the jury (Fay v. Grimstead, 10 Barb. 321). It seems to have been conceded, that if the money had been paid over by the defendant, with the authority and consent of the plaintiff, it would be a defense to the action. Hence, the question of authority and consent was left upon the evidence to the jury.

A condition, upon the performance of which this, question could only be determined, was, that an affidavit should be furnished the stakeholder, that the right horse had run ; and the jury were instructed that if such an affidavit was furnished, the defendant was justified in paying over the money. The ^sufficiency, therefore, of the affidavit for the purpose it was intended for, became a material question ; and whether it was a question of law or fact, it could not be determined by either court or jury, without the production of the paper. If, as a matter of law, it was held to be insufficient, then it was not in evidence, and the court had no right to refer to it, or to submit any question arising upon it, to the jury. It is quite evident, I think, that the jury adopted the Views of the court, as to the character of the paper; and following those views, determined that it did not justify the defendant in paying over the money.

As presented to us by the printed case, the submis sion of any question upon the affidavit was probably error. It had not been read to the jury, and was not before them for any purpose. They, therefore, could not determine any question which it might be claimed arose upon it. Instead, therefore, of submitting any question to the jury, the court ought to have directed a verdict for the plaintiff.

How, then, has the defendant been prejudiced % A verdict in his favor would have been set aside, as having no evidence to support it. The affidavit which was to justify the payment, was not before the jury, and is not in the case. So that the submission of the question to the jury was of no consequence, as the result would necessarily have been the same. But, in any view, the sufficiency of the affidavit, as a performance of the condition authorizing the payment of the money, was not involved as furnishing a defense. At most, it was evidence that the money had been paid over by the authority, and with the consent, of the plaintiff. That would not be a defense to the action. Under the statute, the action lies against the stakeholder, whether he has paid over the money or otherwise ; and it is well settled, that even if paid with the authority and consent, of the depositor, it may be recovered from the stakeholder (Ruckman v. Pitcher, 1 N. Y. 392 ; Same case, 20 Id. 1; Storey v. Brennan, 15 Id. 524).

Under this view of the law, there was no error committed at the trial that was prejudicial to the defense.. There was no defense. The answer set up none, and none was proven, or attempted to be proven, at the-trial. And even if there was error in the submission of the case to the jury, it was error against the plaintiff, who was entitled to an absolute direction of the verdict.

I think the judgment should be affirmed.

Curtis, J., concurred.  