The star and Newark advertiser. [volume] (Newark, N.J.) 1908-1909, 1908-12-22
SAY S Took
DEAL WAS
A GAMbL.E
NOn-Suit Asked on
This Account by
Defendant.
COURT DENIES PETITION
OF SAMUEL kALlSCH
Plaintiffs Lawyer Asserts That
Buying on Futures Is a Legit-
innate Business.
/
VAN SCHAICK & co. SUING
MEYER FOR S1O,656
Transactions Involved In Trial
Extend Over Three-Year
Period.


In his application for a non-suit,
which was made by Samuel Kalisch IA
the Circuit Court before Judge Heislev
today. in the action brought by john
Is. Van Schaick & Co.. stock brokers,
TO recover s10.65sA from Gustave
Meyer of Beleville, for stock sold and
delivered by the plaintiffs to the de-
PENDANT that lawyer held that the.
transaction was in the nature OF IL
gambling one and hence had no stand
ing in court.
ION the very face of it, said the
lawyer. this was a gambling transac-
tion and not a very legitimate one.
1t is not necessary for me to go into
details item by item. as 1t would take
too much Of the time of the court. 1t
has been admitted that one of the ac-
counts was transferred from one party
TO another. II was that of a. marginal
deposit taken from Dick'SS Co. to Van
Schaick 4. CO."
Frank e. Bradner, In opposing fil1e
non-suit on the part OF the plaintiffs.
cited many cases to prove that the
transaction was a business one, extend
ing from August 26 1904 TO July 1,
1907 and there was legitimate In
debtedness from Meyer to the plaintiff.
as the declaration shows a balance of
$10,65S.S4.
II don't understand Mr.. Kaisch's con-
tenton, added Mr. Bradner, except
on the theory that we hold some of the
CT l1at u.
have right to hold that until the debt
is paid. We don't have to offer the
stock for delivery,sthe debtor is to run
otter us. The evidence shows that the
stocks were all sold. The question Is a
question for the jury"
Mr.. Bradner quoted from decisions
showing that the "essence of wager
is that each party to the transaction
stands to win or lose on the result. and
both parties to the alleged illegal con-
tract must agree to the transaction
1T must appear" he added, that
there was an agreement on the deliv-
cry of the stock"
Ordinary Transaction.
Mr.. Bradner contended further that
there was plenty of evidence in the
case to show that deliveries were made
and that it was not merely cass
where there was a settlement of differ
ence.
ut was an ordinary transaction of 4
customer coming into place." he said,
who wants to speculate, and the Su-
preme Court has held that that was a.
legitimate transaction You can't ex
pect a man to deliver the stocks until
the money is delivered and regular
monthly accOuntinrS are made
1T is for the jury to say that there
was an understanding between the par
ties that there should not be an actual
delivery of stock, but only settlement
of differences. We are simply trying
to recover the balance due"
Mr.. Kalisch rejoined that7there was
! no proof in the case that there had
been any delivery made, and although
that the declaration says that the claim
is made for goods sold and delivered
or 'at least a tender of delivery"
"rhey have not shown that they
have laid out $50, ,000," he added they
show that they bought so much stock
The idea of a sale is a purchase aud
delivery. If there has been no deliv-
cry the matter falls under the tatute
of fraud. The transaction as it was
should have been set out in the declara-
tion. Under the testimony in the cause
the plaintiff cannot recover because
there is nothing in the declaration 10
ontitle him to recover. There is ii
variance between the proof and tn
declaration.
On the point of commissions Mr.
Kalisch declared the broker cannot get
any commission if the transaction was
an illegal one.
Judge Heisley denied the application
for a non-suit
The Court Explains.
There is no evidence in this case,
the court said, "of an agreement that
there should not be bona fide sale.
BY the agreement may be implied: In
this case these transactions are numcr-
Gus, involving $2,00O.00o and with sci ,o0o
as the indebtedness. But this account
appears to have been an active account
where the parties bought and sold verr
quickly. A thing may be speculative
and yet not in the nature of a gambling
contract. 1t appears that some of these
stocks were actually bought and sctua-
ly held. some of them for a long time.
Monthly statements were sent tending
to show that they were held and diff