The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1866-12-21
SUPERIOR CouHT-TRIAL TERM.
Imy ortant Decision ms 10 Gamblin9--Whai b
Necessary to be Set Up In Complaint.
Before Judge McCunn.

Imyortant Decision as ia Gambling- What -
Necessary to be Set Up In a Complaint.
Before Judge McCuhn.
John D. Ssainard rs Henry s. Efinee ct al--This y
action to OF money lost at faro table,
The defendants dismiss the complaint
upon the ground that it did constt
tus OF action. After the arguments Of counssa
Judge McCunn rendered the following decision
This acuon 10 uxsed OF article
s. title s. chapter TO- Revived Statutes Tho section ia
these words every person who shall by playing ANT
game by betting the sides hands OF al
play lose at any time sstng the valne n
s2S or upwards and shall pay or ds'vsr the same q
after such delivery for and tnk
moneyor value Of the things so lost and paid delivered
from the winner thereof" Tho complaint contains
averment that Of the money sought TO be recoverc1
"$25 upwards, was los. at usne or sitting. Ths
defendants say this fatal omission, and move 90
cordngly TO dismiss the action Asthe point raised BY
the motion appears not to have been jndicaly deter
mined in any reported case, have bestowed unusna'
alton Ia that the defendants q tepabe ground
and that tho complaint exhibits of action. h
fundamental and familiar rule OF pleading that evsYi
substantive fact necessary In law the maintenance d
the action must DO covered by appropriate nveYmep1
"pesS couIds PIsadns 4s The saprc as t Cow;
OF the United States thus PROFOUND tho principle wheYt
any nc Is necessary TO be found on the trial in order y
sustain the plaintiffs right of recovery, tho declaration
orAcompant must contain an averment Of such ii
order 70 let ~ proof Of tho fact ank OF the United
the rule roaxed and II settled law undor the
code that "cvery fact which tho plaintiff must prove
and which the defendant right 10 controvert in M
answer edisncy averred 10 plain concise aud a.
rect lnguage.' (Gamery vs. Fowler Sand Co.'S Fay W
G O., 10 barb. s2l Bridge vs. Payson sand
30. Soddard Vs. Onondcga An. Conference, ~ Barb
5l3 The reason Of this rule Is too obvious require
illustration Now In the case before Us IL win nos DO
denied that the loss of dollars upwards q
time sitting" Is essential to the PLAINTIFFS right d
recovery Tho statute gives him right OF action ror
only allegation of in the complaint is thar on on
about the 18th OF September 1885, the defendants O.
gaming" &c. This Is formula Of statement usually
not be construed equivalent 70 allegation that the
plaintiff lost twenty ase dollars or upward a sitting
Hence, the complaint omts essential averment and
SO ia fatally Detective At common law action for
money lost at gaming The spirit OF that aenuernan
system Of Jurisprudence not tolerate The idea that
man. after taking the chance Of winning should come
into court and demand restitution Of his loss He was
e. ar a. Ton inc oens' o. - y the maxim
In the reign Of Queen Anne sntute gave tho loser
right Of action for his money; and thai statute
was the ORIGINAL OF our own enactment But few casee
under this law reported In the English books for tho
reason that few persons have. willing expose
court what they had fairly lost ON an equal hazard
However, in Strange, 1,o7e VIM. Blackstone, l,226
cases arising under this statute but In none Il 4. con-
troverted that tho declaration should contain an aver
ment Of every fact which the law makes essential
plaintiffs rghtof recovery. On the contrary the no
cessity OF such averment IL az a postua,e On
reason and authority, then the compa in this acllou
IS fatally defective. cannot permit tho plaintiff 70
amend 10 this particular the code invests the courts
with very bsml discretion. but Il prcscribes ons ~
srctou, which Ia, that the amendment be In fur.
therance Of Justice cannot see how justice would b.
promoted by enabling person recover money which
he had fairly sked and lost when II he winner be
would indsputably pocket hts gains will administer
thIs&aw when sutton brings himself under liz oporS
ton but VIII not strain Its construction FOR his bsneA
The plaintiff here Is clearly entitled 70 indulgence
The Opera Libel Subtitle PiaintiM (css =
Small Verdict.
Before Judge Mcneil.
Mar Narefsek %. william Cds,dspeu 4 aL-rhe Iur,
returned verdict for ihsplainn In this case yes,sr
fay morning at the opening Of the court and s.sessot
he DAMAGES at 81, 900.
Judge Mcneil granted stay Of proceedings for thirty
lays 10 enable defendants 10 make out care II thsk
icsre 10 do So
The court was then adjourned sine die