
    Ivanhoe B. Ludington, Resp’t, v. John Dudley, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed August 1, 1894.)
    
    Lottery—Ives pool law.
    The appeal, in this case, was determined, upon the authority of Irving y, Britton, 58 St. Rep. 836.
    Appeal from a judgment of the district court, in the city of New York for the first judicial district, rendered by the justice upon a stipulated state of facts. Action for money had and received.
    
      John Callahan, for app’lt; Howe & Hummel, for resp’t.
   Bischoff, J.

The facts in this case, as admitted by stipulation, present the identical question which was decided by this court in the case of Irving v. Britton, 8 Misc. R. 201; 58 St. Rep. 836, upon which authority this appeal is to be determined. But apart from the adjudication upon the constitutionality of the Ives Pool Law, (ch. 479, Laws 1887) as presented by the prevailing opinion in that case, the defense in this action must fail upon the ground taken in the concurring opinion handed down therewith. 8 Misc. 206; 58 St. Rep. 836. Hence the determination of the supreme court in the case of Reilly v. Gray, 77 Hun, 402 ; 60 St. Rep. 45, wherein contrary views as to the constitutionality of the act were expressed, even if it could here be observed with propriety by this general term, is not available as a support to appellant’s contention, for we should be content to rest our decision upon the express ground taken in the concurring opinion in Irving v. Britton, above referred to.

Judgment affirmed, with costs.

Bookstaver, J., concurs.  