
    Henry Zeltner, Respondent, v. George M. Irwin, Appellant.
    (Supreme Court, Appellate Term,
    July, 1897.)
    1. Wagering contracts — Recovery of money paid — Rights of assignee.
    Where a person in New York, upon the receipt of a circular signed ■ arid mailed by a person in Pittsburg, Penn.,- containing a general invitation to the public to intrust to the signer moneys to be used on the Chicago Board of Trade in wagering contracts upon the rise and fall in the price of grain (no actual deliveries of grain being in contemplation), mails from New York to the person in Pittsburg moneys to be thus employed by him, a contract, in violation of the statute against wagers and bets dependent upon a chance casualty or unknown or contingent event (1 R. S., m. p. 663, §§ 15, 16) has been made and performed in this state; and an assignee of the person who remitted the money, is entitled to recover, under the statute, against its recipient the money thus paid, as the provision of the statute .is not a mere penalty, but is in the nature of a remedy, and is, therefore, assignable.
    2. Cross-examination — Discretionary limits.
    The extent to which a cross-examination, upon questions collateral to the issue and designed to test the recollection of a witness shallf be carried, is within the discretion of the court.
    Zeltner v. Irwin, 20 Misc. Rep. 398, affirmed.
    Appeal from an affirmance by the General Term of the City Conrt of a judgment of the Trial Term entered upon a verdict in favor of plaintiff for $1,650.90, directed by the court. The action was brought under the statute against wagers, bets or stakes or any gaming by lot or chance or upon any unknown or contingent event, and which permits the recovery of money paid or deposited upon wagers or bets thereby prohibited. 1 R. S. 663, §§ 15, 16.
    R. Burnham Moffat & Evarts & Moffat, for appellant.
    Edgar J. Lauer and Mortimer Stiefel, for respondent.
   Daly, P. J.

The plaintiff, as assignee of' Mrs. Anua. W. W. Smith, has recovered a judgment against the defendant for $1,650.90, being the aggregate of certain sums of money .which she intrusted to him for the purpose of speculating in the rise and fall of grain, and which, he used for that purpose in certain transactions which, while ostensibly purchases and sales of grain' according to the rules of the Chicago Board of Trade, were mere wagering contracts in the rise and fall of prices, no actual deliveries of grain thereunder being contemplated. The allegation of-the complaint is that the moneys w.ere paid and deposited as a wager, bet or stake made to depend upon a chance, casualty or unknown or contingent event; and this is expressly admitted by the answer, the defense being that no recovery can be had under the ¡New York statute against wagers or bets (1. R. S. 663, §§ 15, 16), under which the action is brought, on the ground that .the transactions which are the subject of the action were not had in this state.

The defendant resided in Pittsburg, Penn., doing business under the name of George M. Irwin & Company, and sending out circulars subscribed by that name to persons in this state, among them being the 'plaintiffs assignor and members of her family, proposing the speculations in question and the payment to, or deposit with, defendant of - money for that purpose. In accordance with the suggestions containéd in the circular, Mrs. Smith sent sums of money at different times by- mail from ¡New York to defendant’s address in Pittsburg, the receipt of which sums is fully admitted. It is manifest that whatever contract was entered into between Mrs. Smith and defendant was. made in this state, since his proposition was received here by her and was accepted here by remittances in response thereto. In the case of written correspondence the contract' is closed where the letters containing the proposition is received and whence the assenting reply is forwarded'.' The contract is complete when the letter of acceptance is sent. Vassar v. Camp, 11 N. Y. 441; Trevor v. Wood, 36 id. 307; Howard v. Daly, 61 id. 362; Crown Point Iron Co. v. Aetna Ins. Co., 127 id. 608; Sanders v. P. B. F. Co., 144 id. 209; Passaic M. Co. v. Hoffman, 3 Daly, 495; Selby Steel T. Co. v. Burgess G. Co., 8 App. Div. 444; Wharton Conflict of Laws, 421.

It is contended that the printed circular received by Mrs. Smith, was not shown to have been sent by defendant, but this cannot be plausibly urged since the checks which she mailed to defendant inclosed in a letter were acknowledged by him without question and by form of receipt .which indicated the general speculative purpose -proposed in the circular. It is also contended that the-circular did not constitute a proposal for a contract, but this is equally untenable. The circular was a general invitation to intrust money to defendant since it held out inducements of large profits for doing so and cannot he distinguished from a proposition for an ordinary contract, except that it might he general, instead of being personal, although that even cannot be said in view of its being sent directly through the mail to the recipients. There was a specific proposition embodied in its statements that while people of large means in Wall street put in large sums to get large gains, people of small means could put in sums which the defendant would put in a lot together in the market in Chicago where he had facilities of knowing all about it and rarely failed in his judgment, and there followed a statement of the probable returns from investments of $10 to $100. This was understood by the recipient to be a proposition to intrust money to the defendant to be so used, and was so understood by defendant who received and used the remittances sent in response-to it.

But it is argued that the money so sent was to be employed either in Pittsburg or in Chicago and either of those places and not New York was the place where, according to the intention of the parties, the contract was to be performed, and by the laws of which, therefore, the validity of the contract is to be determined. But the contract was for the payment or deposit of money by plaintiff’s assignor with the defendant and that contract was performed as well as made when the money was mailed from New York according to his proposition and its acceptance. This is not an action to recover from the parties in Pittsburg or in Chicago, with whom defendant dealt, if any there were, but to recover from defendant the money paid to him. The unlawful contract was made and performed in this state since the contract contemplated payment by such remittance. The New York statute was violated by such remittance which was, as defendant admits, a payment or deposit of money upon the event of a Wager or bet upon a lot, chance, casualty or unknown or contingent- event and which is made unlawful and a right of recovery of such money is given to the person paying it.

The right.of an assignee of such a claim is disputed on the ground that the statute gives the right of recovery only to the person paying or depositing the money. "While the statute makes all wagers and bets illegal, whether so at common law or not, and is, therefore, penal in its nature and must be strictly construed, yet the right of recovery of the money paid is not-in the nature of a penalty but of a remedy as in the case of the statute permitting a recovery of money lost in gaming, as was held in Meech v. Stoner, 19 N. Y. 26, which case permitted a recovery by the assignee of the person authorized by the statute to sue.

So far as the record shows, therefore,, a clear case for a recovery, by the plaintiff was made out, and there being practically no defense to. the claim, the direction of a verdict by the. learned trial judge was proper. Complaint, however, is made of his interference with the- defendant’s counsel in cross-examining the plaintiff’s assignor as to the time when the assignment to the plaintiff was made, the defendant endeavoring to show that it was after the commencement of the action. In .this he. was unsuccessful, and no restriction was placed upon his cross-examination on that point; .hut, having elicited from her a statement that she executed the paper before a notary, which she aftérward qualified, the counsel began a prolonged cross-examination on the question as to whether she acknowledged the assignment. The court disallowed a repetition of a question on this point, and when it was again repeated, showed the witness that the paper bore no acknowledgment. Defendant, even then, said she could no.t say whether she went before a notary or not. ,Ko right of defendant was impaired by this proceeding. The question of going before a notary was collateral and for the purpose of testing the recollection of the witness and its allowance was within the discretion of the trial judge.

Judgment affirmed, with costs.

McAdam and Bischoff, JJ., concur.

Judgment affirmed, with, costs.  