
    Thatcher against Morris and another.
    Where a party seeks to enforce in the courts of this state a contract which by its laws is forbidden and declared void, he must aver and prove where it was made, and that by the laws of that place it was authorized and valid.
    Accordingly, wherein a suit to recover prize money drawn by tickets owned by the plaintiff in a lottery alleged to be authorized by and established pursuant to the laws of Maryland by the defendants, and drawn at Baltimore, the complaint did not state where the tickets were sold or purchased by the plaintiff; Held, on demurrer, that the complaint did not state a cause of' action enforceable in the courts of this state.
    The complaint alleged that the defendants were contractors and managers in certain lotteries authorized by the laws of the state of Maryland, and that by such laws they were authorized to sell tickets in such lotteries, to be drawn at Baltimore; that they sold tickets in the lotteries to divers persons to the plaintiff unknown, in schemes set out and stated in the.complaint: that afterwards there was a drawing of the lotteries in pursuance of the schemes at Baltimore in the state of Maryland, and that certain of the tickets specified drew prizes amounting to the sum of $200.60, which the defendants by means of the premises became and were liable to pay to whomsoever should be the holder of the tickets, forty days after the drawing. That after the drawing the plaintiff, for a valuable consideration by him paid to the holder of the tickets which drew prizes, purchased the same from him and became and was the owner and holder thereof. That he demanded payment of the prizes of the defendants, which was by them refused. There was no averment or statement in the complaint as to where the tickets were originally sold by the defendants, or where they were purchased by the plaintiff after the drawings,
    The defendants demurred, stating, as ground of demurrer, that by the constitution and laws of the state of New-York, lotteries are unlawful, and declared a nuisance, and the sale of lottery tickets, or any bargain as to the same, prohibited and made void.
    
      Judgment was rendered at special term in favor of the plaintiff upon the demurrer, which was reversed at a general term of the supreme court in the eighth district, and judgment given in favor of the defendants. From this judgment the plaintiffs appeal to this court.
    
      N. Hill, Jr., for the appellant.
    
      J. H. Patten, for the respondent.
   W. F. Allen, J.

By the constitution as well as the laws of the state, all lotteries and the selling of lottery tickets arc prohibited. Lotteries are declared by law to be common and public nuisances, and the 'uttering of lottery tickets is made a misdemeanor, punishable by fine and imprisonment. (Const, art. 1, §10; 1 R. 8. 665, §§33, 36.)

All contracts and dealings in respect to lotteries and tickets in lotteries being illegal, no right of action can accrue to a party by reason of fsuch contracts and dealings, according to the maxim, ex turpi causa non oritur actio. (Broom’s Leg. Maxims, 350.) If, however, a contract is made and is to be performed without the state, and is valid by the laws of the place where made and to be performed, it would be upheld by the courts of this state, out of respect to the foreign law, and upon principles of comity by which courts are governed, if not contrary to the principles of morality or public policy, although such contract would be illegal within this state. It has been held that contracts made and to be performed without this state in regard to lotteries, being lawful in the state where they were made and to be performed, were not so plainly contrary to morality that our courts could refuse to give them effect. It was suggested that it would be ungracious, after the legislature had authorized lotteries for educational, religious and benevolent purposes, to refuse to uphold contracts in respect to them, upon the ground that they were founded in moral turpitude. (The Commonwealth of Kentucky v. Bassford, 6 Hill, 526.)

The contracts upon which this action is brought, if made within this state by a sale of the lottery tickets by the defendants to the persons under whom the plaintiff claims, are illegal, and cannot be the subjects of an action. The plaintiff, to entitle himself to recover, must show contracts valid by the law of the place where made; and if contracts of this character relied upon are prohibited by the lex fori, it is incumbent upon him to state the circumstances which make this case an exception to the rale, as that the contracts were made in a place and under circumstances which rendered them valid and legal. The plaintiff having resorted to the courts of this state to enforce contracts prohibited and made indictable by the law of the state, the subject matters of which are declared to be public and common nuisances, should, by an averment of the place where made, and that by the laws of that place such contracts were authorized, have shown that these contracts were not within the statute and vitiated by it, the laws of the state having no extra territorial force. It is as if an exception had been engrafted upon the statute which prohibits all dealing in regard to lottery tickets, excluding from its operation all contracts made without the state, and the plaintiff, in seeking to enforce a contract within the general statute, must, in pleading, by proper averments bring himself within the exception. (Chitty’s Plead. 224, 309.) .The courts cannot, in the absence of an averment to that effect, for the purpose of upholding a contract conceded to be immoral and declared to be illegal, presume that it was made in some other state or country in which such contracts are still tolerated, if either is it matter of defense, to be alleged by the defendant, that it was made within the state, and is therefore illegal. The legality and validity of the agreement and the consequent liability of the defendant are to be shown by the plaintiff, by proper averments in the complaint. I do not suppose that the courts are called upon to presume or assume that contracts are made in any particular place when nothing is shown in that behalf; but if any presumption is to be indulged, it must be that the transaction which is the foundation of the action occurred within the jurisdiction in which it is sought to be investigated, and the legal liabilities resulting from it enforced. The question of where made, if material to give validity to the contract, or to aid in its construction, is for the jury upon the evidence, and like every other fact should be averred in pleading, that the judgment may be in accordance with the allegations as well as the proofs of the parties. The determination of the issues of fact presented by the pleadings, should settle the' judgment to be given, and the issues should be so framed that an inspection of the record shall disclose the ground of the judgment. But in a case like the present, if the plaintiff is correct in his positions, the rights of the parties may, and probably do, depend upon a question of fact entirely outside of the pleadings, and the plaintiff’s right to recover depends mainly upon a fact not alleged, and one therefore which the defendant is not called upon to controvert by answer. The place of the making of the contract is so intimately connected with the case of the plaintiff, and so material to his right to maintain the action, that its affirmation was essential to the validity of his complaint. The plaintiff in his complaint has therefore failed to show a valid and legal contract from which a liability can result on the part of the defendants, and the judgment of the supreme court must be affirmed with costs.

Gardiner, Ch. J.

The plaintiff makes title to the prize money in controversy, by virtue of a lottery ticket, which he alleges in his complaint that he acquired subsequent to the drawing of the lottery in the state of Maryland; but without averring where the purchase was made. The instrument purchased was a part of the machinery for carrying on a business which our law pronounces a common and public nuisance. If a party institutes a suit in the courts of this state, upon a contract express or implied originating in such a source, he is bound to show on the face of his complaint, that his title was acquired in a jurisdiction where gambling was authorized by law. He seeks his remedy in a state where this species of it is a public and common nuisance, and he fails to show a title to relief when the most favorable statement he caft make of his claim, leaves it doubtful whether it is within or an exception to the general rule. The affirmative is with him in pleading as on a question upon evidence. He cannot recover by showing that the chances in favor or against his demand are about equal. He should, on paper, at all events, incline the balance in his own favor.

I think the judgment should be affirmed.

Judgment accordingly.  