New-York tribune., 1867-05-16

allegation and ayerment OF the complaint.
The Justice, before whom tho action was tried as
missed the complaint. aud Judgment entered for inc
defendants and against the plaintiff. who appealed
George W. Pdine Tor plhntiH; Roger a. PIyor lor uc
fendauis. an
BY tie Court Carvin. 1T is enacted that "a
wagcrs beta etakes made 10 depond upon any race
or upon any gaining by lot or charge upon any lot
chance, casualty. unknown contingent event what
count OF any mOnSs tr property or tng in action so
wagered. s.st Or stake. shah be void" q r. s. ~
agans. betting and gaming provides Every per, pSr
son who shall, ~ playing at any o game =, or nay 1
lose az any time sittngthe sum value of s21
or upward. and shall pay deliver the same or any
part thereof may within three calendar months after
such payment delivery for aud recover the money
or value Of the things 80 lost and pald Or ns GS,
statute, the plaintiff would have no right OF ao'
ton for tho money lost and paid BY this statute the
ens prescribed The form of the declaration in different
actions-one was debt another assumpsit q r. s. page
by the code tsec co.. 1t Is contended by the plaintiff
that tho court erred in dismssing the complaint Ihls
depends upon the construction to be given TO the second
subdivision OF the I42d section of the CODE which cnjons
plain and concise statement in the complaint OF the
facts constituting cause of action The frs section G
debt is Ii shall be sufficient for the plaintiff with
out setting forth the sssn matter TO aGSS eSSebted & to
the plaintiff IN the rcceired whereby an action
accrued 70 the plaintiff, according to The statute
vdes that it shall sufficient for the plaintiff Without
ton tat money @ was reeired contrary 70 the provisions
OF such statute upon betting and gaming Under the rst
sTmst This Complaint was drawn under frat section
in analogy action OF debt before its abolition py e
code Upon one of these two sections the plant Claims
TO stand IL seems clear that certain things are abohco
by the code, and others modified fra Inc deca
ton Second: The odd and forms OF action anu
Third The forms of pleadings provided such form IN
consistent with the code hnuS ond do tSo Pcr ac
tion $50 far applied to the protection ,Sa Sa
place ali old forms of action aud the plain and concise
statement Of facts constituting cause or action, nseao
Of the old forms Of peadlng where tney are sea f ~
This brings to the statutory pleading under the ise
section OF X g. $685. The only hecesaiy u ~
der that section That the defendant u indebted 10
the plaintiff in the sum (paintih caims whereby an &C
tion accrued to the plaintiff according 10 the stse
against betting and gaming THIS the statute declares
sufficient without setting out the special nousfI OF, ~
other words without setting out the facts rs they exist
and upon which the action must rest at the ;tramo ~
the language OF the code tho ihcts whlch @
cause Of action. What are tnoSe s iaevi n n,oyinS
any game. or by betting on the Sides o.
hands Of such as 90 play & S'G ss% S sS aT an G ~ pap sroo
may for and recover the money from the winner
thus at loss for tho facts this cause
S Snd pSgur SsI eTk SShs t NJ WS"
he sna oaTsr ho 2t ana ,sclon Go1 are
changed a modified 10 far as they are i"asis.sint
with those OF the Code. It is possible, II the comP
uage, 1t would have been good pleading That requires
allegation that the money was received II received
paid how this may be Doubtful IL is not neccs
sary pass upon the second section, nasmuoh as the
there is no allegation that defendants received
the money. which would be a fatal objection TO the
complaint under section two, without other eluyalent
allegations which At does not contain. The complaint
does not conform 20 the code. The allegations ointted
the defendants whereby an action accrued With this
addition the complaint would have been good; ats ma
all other defects In the complaint are waived 40 Ar
they apply to this case excepting that OF IN ano ,s
which may De taken advantage OF upon the trlaL Inc
statute gives the plaintiff remedy ne % ust pqsIs no 1Sf
adopted cannot MD him. The defendants are 20 pe
made to respond N ae N way % oSe, Os U cannot 20 be-
yOnd the limits assigned us by theauihorty uhuer winch
This Judgment should be affirmed. with costs.
DECISIONS
SPECIAL TFRM-MAr l0-Before Justice JoSEs.
Chas Schaefer agt. Jacob FinkEAotion for Re
William Fullerton agt Willis Gaylord.-ho'ion granted
Wv" Wv Before Justice McCUSS.
Egsto 7. Fabbr ct al agt. Henry Eisoer.-Moton
David Mosely agt. Levi Cohen ct al-Motica granted
Christopher W. Rapport agt. Fritz Grossman ct al
MoiIon for attachment granted with costs;
Margaret Appel agt. Jacob schneder.-MotiOn granted
Mar1son aSt Levy Cohen ct al.-Motion granted.
George D. Carroll agt Simon Lerine. granted
John Wimpie agt James Kappe Defendant called, and
falling TO appear. attachment granted ,,..,.. ..,
Zachary Peek agt. William Minot ct al-Motion granted
without costs. 80
James w. Powell 81 a. agt. Samuel Cleland-ReoS-'er
appointed and injunction granted.
Catherine MeGaTry agt. The Mayor, &c.-Moton
granted -
In re the petition Of Mack for the custody OF the
infant-Referred 90 a referee 10 take testimony.
In re. the application Of Benjamin sturderant TO be
discharged by writ Of habeas corpus-No one appearing
90 the answer to the writ, attachment 10 issue.
Jas Gibson ct al AIT. Robert H. Blcakie ct a-Moton
granted without costs.
Anna C. Kleg agt. Henry Scott.-Moton granted.
Patrick Griffin agt. l.. X. Winship-Defendant dis
charged from custody OF the Sheriff.
In re. the application OF Maryi Callahan &c.Moton
granted
barbara schreyer agt. Philip schreyer.-Report
nrmed and gInent o. divorce granted.
David Elston agt. Andrew 5chilling ct al-Suretles
Justified.
Board OF Water Commissioners Of Detroit ar. Henry
A. et aL-Case settled. Papers In Clerks Onice.
In re the application of Anne Williams and Anne Wilson
10 be discharged from eustody.Prsoners discharged
Before Justice JONES
Henry Crovther ct al ngt. william W. Robblns-MOton
10 yacate order OF arrest granted with go costs