#### Shirley Johnson, by Richard F. Johnson, his Guardian ad Litem, Respondent, *v.*William Clark, Appellant.

(Supreme Court, Appellate Term,

April, 1898.)

Betting and gaming — Jewelry delivered *by*a,n infant in return for poker chips, subsequently lost in play — False statement of the' infant as to his age.

The delivery by an infant of jewelry a¡s a security for or in pay- ' ment of .poker chips,. subsequently lost by him in a game in which the receiver of the jewelry took part,, evidences a gambling contract and entitles the infant to recover the value of the jewelry and this although he, before‘entering the game, stated that he was of age.

Appeal from a judgment of the Eighth District Court, in favor of the plaintiff. -

Thomas Bettner, for plaintiff.

John C. Coleman, for defendant.

Gildersleeve, J.

The following facts- are fairly established by evidence, offered on behalf of plaintiff, viz.:- The defendant was the president and virtual proprietor of a club, where gambling was practiced. Defendant, or his assistant, wnuLd sell poker chips to the players, to be used in the game,, and, at the conclusion of the *347game, there would be a settlement made, in cash, with the defendant, or his representative. The defendant himself and his assistant usually took part in the game. -The plaintiff, a boy of about eighteen years of age, frequented this gambling place, and bought chip's from defendant, or his representative, which he lost in the game. Not having any more money, the plaintiff gave to the defendant a diamond stud, and, afterwards, a ring, the value of which jewelry has been fixed, by consent of the parties, at $200, and the defendant advanced ¡to the plaintiff, on such jewelry, poker chips to the amount of about $27, as plaintiff swears, but never gave to the plaintiff a cent in actual money or cash. These poker chips the plaintiff lost in the game, in which, as we have said, defendant himself participated. Defendant, it is true, swears that he never sold plaintiff poker chips, but loaned him actual money, to the extent of about $196.90; but the learned trial justice, upon abundant evidence, has found in favor of the plaintiff’s contention, and that finding will not be questioned by the • appellate court. There is also a conflict of evidence as to whether plaintiff asserted that he was of age, before defendant allowed him to take part in the game; but, upon this point, also, there is sufficient evidence to uphold the finding of the justice in plaintiff’s favor. Even if the preponderance of testimony on this question were against the plaintiff’s contention, and even if we assume that the contract or agreement between plaintiff and defendant was not void in law as a gambling contract, still a fraudulent representation, made by an infant, in relation to his age, to induce another person to enter into a contract with him, does not give validity to the contract itself. See N. Y. Building Co. v. Fisher, 23 App. Div. 363.

Appellant also raises a-point as to the ownership of the jewels by plaintiff, but the evidence is quite clear that the jewels were given to. the plaintiff by his brother, with a sort of indefinite understanding that the former was not to part with them. The title to the jewelry is in the-plaintiff, and he has a right to maintain the action.

We are of opinion that the evidence is abundantly sufficient to support the finding that the arrangement which existed between the parties, in virtue of which the plaintiff delivered to the defendant the jewelry in question, was a gambling contract, and, therefore, void in law. See 1 R. S. 662, §§ 8, 9, 14 and 16; Mount v. Waite, 7 Johns. 434; Decker v. Saltsman, 1 Hun, 421; affirmed, 59 N. Y. 275; Ransom v. Vermilyea, 11 N. Y. St. Repr. 683; Meech v. *348Stoner, 19 N. Y. 27; Collins v. Ragrew, 15 Johns. 5. The jewelry was given either as security for, or in payment of, poker chips, which were lost in a game played in defendant’s gambling place, and in which game defendant himself .took part; and plaintiff is entitled to recover back the value of such jewels. See Meech v. Stoner, *supra;*Ransom v. Vermilyea, *supra;*Collins v. Ragrew, *supra;*1 R. S., *supra.*It is well settled that the loser of money by gaming may recover back the amount in an action for money had and received. Collins v. Ragrew, 15 Johns. 5.

For the reasons above stated, the judgment appealed from should be affirmed, with costs.

Beekman, P. J., and G-iegebioh, J., concur.

Judgment affirmed, "with costs.