Betts v. Hillman.

By the Court.*—Brady, J. The right of the plaintiff to recover the money lost depends upon the statute, there being no [186] remedy at common law. (Ruckman a. Pitcher, 13 Barb., 556; Meech a. Stoner, 19 N. Y., 26; Weyburn a. White, 22 Barb., 82.) The action by the statute must be brought against the winner or person to whom the money shall be paid or delivered. (1 Rev. Stat., 662, §§ 9-14.) The money lost by the plaintiff in this case was not paid or delivered to the defendant, unless paid to him as the partner of Mathews, the co-defendant (who was not served with process), and by Mathews, or through his agency. Mor was the defendant Hillman the winner of the money unless he was the sole proprietor of the house in which the game was played, and the defendant Mathews a mere servant or dealer. The proof shows that Hill-man’s name was on the door of the premises, and that he was in and about the room when the money was lost. He did not set up as a defence in this action that Mathews was his partner, or that he did not alone receive the money. His answer was a denial of the allegations in the complaint substantially. The complaint did not charge the defendants as partners, but that upon information and belief the defendants were the winners, and “ that the plaintiff paid the money to the defendants personally, or through their agents, in such manner that the defendants received said money so lost.” The proof given on the trial that Mathews was a partner, consisted entirely of the declaration of the defendant Hillman to that effect, when addressed about the plaintiff’s loss. Such evidence could not affect Mathews, who, not having been served with process, was not before the court. The conclusion to be drawn from this testimony is that Mathews was a dealer and Hillman the proprietor of the establishment. If it were not so, it was the duty of the latter to show it, as he could have done by his own evidence or that of Mathews. He did not deem it necessary to offer any proof, and the case comes to us on that furnished on behalf of the plaintiff. The defendants in this case are tortfeasors. They were both engaged in an unlawful business, and as wrongdoers judgment could be rendered against one if both had been served with process. (Moon a. Eldred, 3 Hill, 104; Finn a. Timpson, 4 E. D. Smith, 276.) And there can be no doubt of the right, and that it was the duty, of the justice to find against the defendant in court. That defendant did not deny the receipt of the money when spoken to by plaintiff and his witness; he [187] simply declined to restore it without consulting his partner, as he called him. I think the judgment must be affirmed. The appeals in the second and third actions were determined at the same term. The opinion of the court in the second action was as follows: By the Court.—Brady, J. The objection that several actions were pending, was not one for which a nonsuit should have been granted. The transactions were independent, and, partaking of the nature of a tort, were not strictly that kind of a demand, the splitting up of which for the purpose of various suits is not tolerated. In this case, and in the case No. 3, the same conclusions on the other questions are arrived at, as expressed in No. 1. There is no material difference in the facts proved. The judgments must be affirmed, therefore. Footnotes [*] Present, Daly, F. J., Hilton and Brady, JJ,