
    Meyer Benisch and Helen Benisch, Respondents, v. Richard R. Mandelbaum, Appellant.
    First Department,
    December 5, 1913.
    Gambling — equity—jurisdiction of suit to compel return of security given for payment of money lost at cards—Penal Law, sections 993 and 995, construed.
    Although, as a general rule, a court of equity will not assume jurisdiction in a suit to compel the surrender of a note and the return of property transferred as security for the payment of moneys lost at cards, where such suit is brought by a husband and wife and the latter has joined with her husband in the assignment of an insurance policy without knowledge of the unlawful consideration, the court will protect the rights of the wife, and a demurrer -to the defense of the three months’ Statute of Limitations, under section 995 of the Penal Law, will be sustained. Such a suit is not maintainable under section 993 of the Penal Law. Section 995 of the Penal Law has no application to the case.
    Appeal by the defendant, Richard R. Mandelbaum, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of August, 1913, denying defendant’s motion for judgment on the pleadings, and sustaining a demurrer to a separate defense set up in the answer.
    
      I. N. Jacobson, for the appellant.
    
      William Godnick, for the respondents. •
   Hotchkiss, J.:

The complaint alleges that plaintiff, Meyer Benisch, lost $750 to the defendant at cards, for which amount Meyer delivered to defendant his promissory note, payable to defendant’s order four months from.date, and to secure the note, Meyer delivered to defendant a valuable diamond ring, and assigned and delivered to defendant an insurance policy on Meyer’s life, in which assignment, Helen, Meyer’s co-plaintiff and wife, was induced to join, the unlawful consideration for such assignment by plaintiff not being disclosed to her; that at the maturity of the note a renewal note for the sum of $780 was made and delivered to defendant by Meyer. The special relief demanded is the surrender and return of the note and ring, together with the policy, and that defendant he compelled to execute a reassignment of the latter.

The answer set up several defenses, one of which is the three months’ Statute of Limitations under section 995 of the Penal Law. Plaintiff having demurred to this defense, defendant moved for judgment on the pleadings. Ooncededly none of the other defenses were good. I do not think that section 995 has anything to do with the case. That section authorizes an action for money lost at play “or by betting on the sides or hands of such as do play,” which is not this case. The plaintiff argues that the action is maintainable under section 993 of the Penal Law, and that the six years’ statute applies. I find nothing in that section which authorizes any such action. Section 993 declares void, with certain exceptions, “all things inaction, judgments, mortgages, conveyances and every other security whatsoever given or executed by any person where the whole or any part of the consideration of the same shall be for any money or other valuable thing won ” at play or by betting on the result of play, etc. .It is one thing, however, for such security to be void and quite another thing to admit the loser into a court of equity for the purpose of annulling such security and obtaining a return of the same. The grounds of this distinction .and the reason for denying the loser the privilege of resorting to a court of equity for relief are fully set forth in Meech v. Stoner (19 N. Y. 26, 27, 28).

But the fact that so far as plaintiff Meyer alone is concerned, there is no equity in the complaint of which the court will take jurisdiction, does not justify us in overruling the demurrer to the answer as to the plaintiff Helen. She was not a particeps to the gaming, transaction and has been induced to sign away, or to consent to an assignment of her interest in the policy, with-cut any consideration paid either to her husband or to herself, and for that reason she has a standing in court. As to her, there was a cause of action to which the answer presented no defense.

The order should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Order affirmed, with ten dollars costs'and disbursements.  