
    Conway v. Conway.
    (Supreme Court—Monroe Special Term,
    July, 1893.)
    Where an agent, instead of turning over to his principal the avails of sales made by him as agent, loses the money at gambling, the principal may maintain an action for money had and received against the agent, and also against the parties who won the money.
    In several actions for money had and received, to recover money belonging to plaintiff lost by her agent by betting on a horse race and playing at “faro,” defendants, i. <?., the agent and those who won the money, under the impression that the action was brought under the statute relative to “betting and gaming” (1 B. S. 662), and that plaintiff could have no standing in court unless she brought her case within the provisions of the statute, demurred to the complaints on the ground that they did not state a cause of action. Held, that as the actions were not brought under the statute referred to, but were equitable in then-nature and look entirely to the question whether the defendants hold money which in equity and good conscience belongs to plaintiff, the demurrers should be overruled.
    Demurrer to plaintiff’s complaint in this and three other actions brought by same plaintiff.
    
      Jacob Spakn, for plaintiff.
    
      Frederick W. Smith, for defendants.
   Adams, J.

This is one of four actions brought by the plaintiff to recover back moneys lost at gaming by the defendant Peter Conway. The parties defendant are not the same in each action, nor are the facts, but the same question of law is presented in each and the disposition of that question is necessarily decisive of all four actions.

The facts which by reason of defendants’ demurrer stand admitted, briefly stated, are as follows : The defendant Peter Conway was the agent of the plaintiff and as such sold certain articles of produce belonging to his principal. Instead of turning over the avails to her, he lost the same, or portions thereof, to his codefendants in games of chance. In two of the actions his money was wagered upon a horse race and in the remaining two upon a game of chance known as “ faro,'’ and herein lies the distinction in the facts of the several actions, before adverted to.

The actions are brought to recover back the moneys thus lost and are, in form, as for money had and received.

The demurrer rests upon the contention that the complaint does not state facts sufficient to constitute a cause of action, and the defendants’ counsel evidently labors under the impression that the actions are brought under the statute relative to betting and gaming ” (1 R. S. 662), and that the plaintiff can have no standing in court, unless she brings her case within the provisions of that statute.

In my opinion the learned counsel has misinterpreted the scope and meaning of the statute in question, or, to be more accurate in statement, he does not correctly apprehend its relation to parties situated as is the plaintiff in these actions. That statute was obviously designed to confer upon one who had lost money at gaming or betting, a right of action which did not exist at the common law. This was so, not because the winner obtained any legal title to the money won, for at common law gambling was just as unlawful and unconscionable a mode of procuring a livelihood as it is under the statute, but because the loser was “ m jpari delicto,” and, therefore, not entitled to the protection of the court (Meech v. Stoner, 19 N. Y. 26), and the new right which is thus conferred is designed, not so much for the protection of one who loses his money at games of chance, as it is to furnish an additional means for the prevention or discouragement of gambling.

But these actions are not brought under the statute referred to. Indeed, they are quite independent of that statute, and it may be assumed that if plaintiff’s only right rested upon its provisions, the defendants would be fully justified in insisting that no cause of action is stated, for it is quite certain that although her money was lost at gaming by her agent, she cannot, in the language of the statute above cited, be said to be “ every person who shall, by playing at any game or betting, etc., lose at any time or sitting, the sum or value of twenty-five dollars or upwards.”

As has been stated, the actions are for money had and received, and the question presented, therefore, is simply to whom does such money ex aequo et bono belong Buel v. Boughton, 2 Den. 91. The actions are equitable in their nature. They aim at the mere justice of the case and look entirely to tne question whether the defendants hold money which in equity and good conscience belongs to the plaintiff.” Colville v. Besly, 2 Den. 139, 142.

It is conceded that the money in question before it was mst did belong to the plaintiff, and that without the slightest consideration passing to her and without fault o.n her part, but by means which are in contravention of both the moral and civil law, it has come into the hands of the defendants other than the defendant Peter Conway. This being the case it scarcely requires the citation of authorities to show that defendants’ title is not founded “ in justice and honesty,” but that, on the contrary, they are in possession of moneys which,, by every principle of equity and morality, belong to someone else, and this being so the authorities are abundant to support the plaintiff’s cause of action. Causidere v. Beers, 1 Abb. Ct. App. Dec. 333; Long v. Bussell, 13 J. & S. 434; 83 N. Y. 606; Fagnan v. Knox, 66 id. 525, 532; Dows v. Kidder, 84 id. 121; Mason v. Waite, 17 Mass. 563 ; U. S. v. State Bank, 96 U. S. 30.

The demurrer in each action is overruled, with leave to answer upon the usual -terms.  