#### William S. Hollingsworth, App’lt, *v.*Lucy O. Moulton and Ano., Executors of John F. Moulton, Dec’d., Resp’t.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 22, 1889.)*

1. Promissory rote—Gives is paymest or gambling debt — Validity of—3 R. S., 1963, § 16.

A promissory note made and delivered for the purpose of taking up a *844protested check, which had been given in payment for a gambling debt is void, and no recovery can, under the statute (3 R. S., 1963, § 16), be had thereon.

3. Parties—When agent mat she for principal—Code Civ. Pro., § 449.

The note in suit was payable to plaintiffs order, who received it as agent for her principal one D. *Held,*that under Code Civil Procedure, § 449, he is authorized to bring the action.

Appeal from a judgment entered upon the report of a referee appointed in the proceedings under the statute to establish a claim of the plaintiff against the estate of John F. Moulton, deceased.

*Henry O. Soot*and *Thaddeus D. Kenneson,*for app’lt; *George J. Sicard,*for resp’t.

Maoomber, J.

The defendant’s 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 the letters 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 R. S., 1963, §16) 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 whatever, * * * 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. This consideration necessarily leads to an affirmance of the judgment.

The learned referee, however, has fallen into an inadvertent error in deciding that if any action can be sustained *845upon 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 of the Code of Civil Procedure, authorizes a trustee of an express trust to bring an action in his own name. A trustee of an expressed 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.