
    Hollingsworth v. Moulton et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    June 22, 1889.)
    1. Gaming—Note fob Money Lost—Renewal.
    Defendants’ testator gave one D. a check for §3,500, for money lost to D. in gaming. The check was protested for non-payment. Several letters and telegrams then passed between testator and D. concerning the transaction. Afterwards plaintiff, as agent for D., surrendered to testator the letters and telegrams written by him, and the protested check, receiving in return a check for §500 and a note, payable to plaintiff' for $3,000. Held, under 3 Rev. St. N. Y. p. 1963, § 16, providing that “ all things in action, * * * and every other security whatsoever, given or executed, where the whole or any part of the consideration of the same shall be for any money * * * won by playing at any game, * * * shall be utterly
    void, ” that no recovery could be had on the note, and it is immaterial whether or not the letters, etc., surrendered were of pecuniary value.
    3. Tbusts—Actions—Pabties.
    Under Code Civil Proc. N. T. § 449, authorizing a trustee of an express trust to bring an action in his own name, plaintiff was the proper person to sue on the note.
    Appeal from judgment on report of referee.
    Proceeding by William S. I-Iollingswortli against Lucy O. Moulton and another, executors of the will of John F. Moulton, deceased. The claim was referred under the provisions of 3 Rev. St. N. Y. (7tli Ed.) p. 2299, § 36, and from the judgment entered on the report of the referee the claimant appeals.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      Henry U. Hoot and Thaddeus D. Kenneson, for appellant. George J. Si-card, for respondents.
   Macomber, J.

The defendants’ testator, John F. Moulton, had, in his life-time, prior to the month of November, 1886, lost in gaming to one John Daily the sum of $3,500, for which he gave said Daily his check on a bank. Payment of the check, when presented, was refused, and it was accordingly protested for non-payment. Certain letters and telegrams passed between John F. Moulton and the said Daily in regard to the transaction. On the 20th day of November, 1886, the plaintiff, who had authority to act for Daily in the premises, returned to John F. Moulton the protested check, together with theTetters and telegrams written by said Moulton, and received in return therefor a check for the sum of $500,— which on presentation was paid, —and the note now in suit, for $3,000. The note upon which this action was brought, was made and delivered for the sole purpose of taking up the protested check, in part, which had been given for a gambling debt. This fact is not only not denied, but it is stipulated as true, in the case. The learned counsel for the appellant ingeniously argues that the surrender of the letters and telegrams, together with the protested check, constituted a new consideration, which would uphold this promissory note. To this proposition we cannot accede. There is no evidence that the telegrams and letters were regarded as of any pecuniary value. But, whether of any pecuniary importance or not, it is not shown that they entered into the consideration of this note. But, whether they did or not, no recovery can be had upon the note, under the statute aimed against gaming, which provides (3 Kev. St. p. 1963, § 16,) that “all things in action, * * * 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 * * * won by playing at any game whatsoever, * * * shall be utterly void.” Under this statute, if the note in suit is tainted in any respect by the vice of gaming, no recovery can be had upon it. Tins consideration necessarily leads to an aflirmance of the judgment.

The learned referee, however, has fallen into an inadvertent error in deciding that if any action can be sustained upon this note it can be brought only by Mr. Daily, the principal, and not by this plaintiff, who is shown to be the agent only of Daily. But the note was made payable to the plaintiff’s order. Section 449, Code Civil Proc., authorizes a trustee of an express trust to bring an action in his own name. A trustee of an express trust is there defined to be “a person with whom, or in whose name, a contract is made for the benefit of another.” The action was brought by the proper party; but, as is pointed out above, no action by any person can be maintained upon this paper. The judgment should be affirmed, with costs. All concur.  