
    STANNARD, against EYTINGE.
    
      New York Superior Court; General Term,
    
    
      May, 1867.
    Pleading.—Action fob Monet lost at Plat.—Fobm of Complaint.
    A complaint in an action to recover back money lost at play by the plaintiff to the defendant, which merely states that the defendant won at gaming, of the plaintiff a specified sum, with an averment of demand and indebtedness, and a reference to the statute, does not state facts sufficient to constitute a cause of action.
    Such complaint should aver that the money was lost and was paid or delivered to the defendant, or should otherwise show that the money was actually received by him. '
    ■ Where a complaint in an action is defective for not stating facts sufficient to constitute a cause of action, the defect is not waived by the defendant answering it; but may be objected to upon the trial notwithstanding.
    Appeal from a judgment dismissing a complaint.
    This action was brought by John Stannard against Henry S. Eytinge, Christian W. Schaffer and John A: Worshmafr. The plaintiff’s cause of action was stated in his complaint in these terms:
    “ The plaintiff, complaining, shows that the defendants, on or about the 13th of September, 1865, won, at gaming, of the plaintiff, the sum of $861, whereby the defendants became indebted to the plaintiff in the aforesaid sum, and the plaintiff . immediately thereafter demanded the said sum of the defend; ants. And the plaintiff alleges that an action accrued to him to recover said sum with interest, according to the provisions of the statute against betting and gaming; wherefore the plaintiff demands judgment against the defendants for the sum of $861, with interest from the 13th of September, 1865.”
    The defendants, in their answer, denied each and every allegation of the complaint.
    The Justice before whom the action wras tried dismissed the complaint, and judgment was entered for the defendants against the plaintiff.
    From this judgment the plaintiff appealed.
    
      George W. Paine, for the appellant.
    
      Roger A. Pryor, for the respondents.
   By the Court—Garvin, J.

is enacted that all wagers, bets, or stakes, made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty, or unknown or contingent event whatever, shall be unlawful. And all contracts for an account of any money, or property, or thing in action so wagered, bet, or staked, shall be void.” (1 R. S., sec. 8, page 662.) The fourteenth section of the statute against betting and gaming provides": “ Every person who shall, by playing at any game, or by betting on the sides or hands of such as do play, lose at any time or sitting the sum or value of twenty-five dollars or upward, and shall pay or deliver the same or any part thereof, may, within three -calendar months after such payment or delivery, sue for and recover the money or value of the things so lost and paid or delivered from the winner thereof.” Without this statute, the plaintiff would have no right of action for the money lost and paid. By this statute, the right of action is plainly given to the loser; other enactments prescribed the form of the declaration in different actions—one was debt, another assumpsit. (2 R. S., page 663, §§ 1, 2.) These designations have been abolished by the Code (§69).

It is contended by the plaintiff that the court erred in dismissing the complaint. This depends upon the construction to be given to the second subdivision of the 142d section of the Code, which enjoins a plain and concise statement in the • complaint of the facts constituting a cause of action. The first section-of the Revised Statutes, as to the form of declaration in debt is * * * * It shall be sufficient for the plaintiff, without setting forth the special matter, td allege in his declaration that the defendant is * * * * * indebted to the plaintiff in the sum so received, whereby ah action accrued to the plaintiff, according to the statute' against betting and gaming. The second section provides that it shall be sufficient for the plaintiff, without setting forth the special matter, to allege in the declaration that money was received, contrary to the provisions of such statute upon betting and gaming. Under the first section the action was debt, under the latter it was assumpsit. This complaint was drawn under the first section in analogy to the action of debt before its abolition by the Code. Upon one of these two sections the plaintiff claims to stand.

It seems clear that certain' things are abolished by the Code, and others are modified:

First, the declaration; second, the old 'names and terms of action; and, thud, the forms of pleadings, provided such form is inconsistent with the Code; thus the complaint is substituted for the declaration, and the civil action* (so far as applies to the protection of private rights and redress of private wrongs) in the place of all old forms of action, and the plain and concise statement of facts constituting a cause of action, instead of the old forms of pleadings; where they are inconsistent with the Code. ■ (See § 468.)

This brings us to the statutory pleading under the first section of 2 R. S., 363. The only allegations necessary under that section are: that the defendant is indebted to the plaintiff in the sum (plaintiff claims) whereby an action accrued to the plaintiff according-to the statute against betting and gaming. This the statute declares sufficient without setting out the special matter; or, in other words, without setting out the facts as they exist, and upon which the action must rest at the. trial—or, in the language of the Code, the facts which constitute a cause of action. What are those facts ? The statute is that every person who shall, by playing at any game, or by betting on the sides or hands of such as do play, lose the sum of $25 or upward, and shall pay or deliver the same or any part thereof, may sue for and recover the money from the winner; thus we are-at no loss for the facts constituting this cause of action—they are losing money by playing at any game, and paying or delivering the money. "Opon these facts he may sue for' and recover the money so lost and paid, or delivered. I think the provisions of the first section are changed, and modified, so far as they are inconsistent with those of the Code. It is possible, if the complaint had been framed upon the second section and in its language, it would have been good pleading. That requires an allegation that the money was received. If received by the defendants, it might be -said, it must have been paid;. however, this may be doubtful; but it is not necessary to pass upon the second section, inasmuch as the complaint is clearly drawn upon the first. Again, there is no allegation that defendants received the money, which would be a fatal objection to the complaint under section two, without other equivalent allegations which it does not contain. The complaint does not conform to the Code. The allegations omitted are : that the money was lost and paid or delivered to the defendants, whereby an action accrued. With this addition the complaint would have been good. Its material defect is not waived by the defendant’s answering; all other defects in the complaint are waived so far as they apply to this case, excepting that of insufficiency of statement of facts to constitute a cause of action (§ 148), which may be taken advantage of upon the trial. The statute gives the plaintiff a remedy. He must pursue the course fixed by law to attain it. If this course is not adopted we cannot aid him. The defendant's are to be made to respond in the way pointed out for the redress of private wrongs, and in no other. We cannot go beyond the - limits assigned us by the authority under which we act.

The judgment should be affirmed with costs.  