GILPIN v. DALY

GILPIN v. DALY. N. Y. Supreme Court, First District, Chambers; March, 1890. Pleading; complaint to recover money lost Toy employee in gaming.1 It is not improper, in an action for money had and received, to state, in the complaint, the fact that the money sued for and belonging to the plaintiff's assignor, was lost in a gambling house kept by the defendants. Such circumstance would go to show the relation and situation of the parties at the time the money was lost, and is material. Motion by defendants to strike out certain allegations of the complaint, and for a bill of particulars. Two actions were brought by the same plaintiff, one against the defendant Daly and others, and the other the defendant Appleby and others, respectively, to recover certain moneys and for an accounting. The complaint in each alleged that the plaintiff was the assignee under a general assignment of the Glamorgan Iron Company, a corporation organized under the laws of Pennsylvania, and became by such assignment the owmer of these causes of action. That the defendants were the proprietors of gambling houses, or rooms, in the City of New York. That at such houses and at various times, one Charles B. Wigton, an employee of the Glamorgan Iron Company, acting in the capacity of treasurer thereof, lost at certain games of chance, sums of money belonging to the said Glamorgan Iron Company, and aggregating $22,000 and $5,500, respectively. Judgment was demanded for the recovery of the said sums, and that defendants account, showing the dates when, and the amount of money or securities taken by Wigton, and the amounts lost by him and paid to the defendants. The defendants moved : I. That that portion of the complaints alleging that the defendants “ maintained a gambling house at No. — in the City of New York, where unlawful games of chance were played,” be stricken out as irrelevant, redundant and improper. II. That the other allegations, arraigning the houses in question, be stricken out, the method of acquiring the moneys being the real issue, not the character of the houses. III. That all the allegations other than such as are necessary to maintain an action for money had and received to plaintiff’s use, be stricken out, the complaint conceding on its face that plaintiff knows the amount of defendants’ liability, and the time when it arose. 1Y. That plaintiff furnish a bill of particulars of his claim. Y. That the complaint be divided into as many (alleged) causes of action as there were (alleged) winnings and receivings of the plaintiff’s money. John Graham, defendants’ attorney, for the motion. Strong & Gadwalader, plaintiff’s attorney, opposed. [MAJORITY — Pattebsok, J.] Pattebsok, J. That an action for money had and received, will lie against a person who has won by gaming, from an employee, the money of his employer, was decided in Causidere v. Beers (1 Abb. Ct. App. Dec. 333), and it is there intimated that in such a case the money might have been recovered at common law, in a declaration under the common counts. But, in an action under the Code, facts are required to be set forth, and one of the facts stated in these complaints is that the money belonging to the plaintiff’s assignor was lost in a gambling house belonging to the defendants. That cannot be considered as an entirely immaterial fact, because it is a circumstance which, in an action for money had and received, would go to show the relation and situation of the parties at the time the money was lost, so that even upon the contention of the learned counsel for the defendants in his able argument that the complaint should be trimmed down to one for money had and received, the matter objected to should not be stricken out under the provisions of the Code which he has invoked for that purpose. I do not wish to express any opinion as to whether or not this suit can be maintained as one in equity. That is a question which must arise in another way. There is a good cause of action on the facts appearing, and the part, now objected to is not irrelevant to that cause of action, whether the remedy be legal or equitable. As to that part of the motion respecting a bill of particulars,' there is-nothing to show that the defendants have hot as full knowledge of the circumstances and details of the transactions respecting the loss of the moneys as the plaintiff has, and therefore that branch of the motion must be denied. It further appears that the plaintiff has not knowledge of the facts. Concerning the division of the complaint into-as many causes of action as there were different winnings of the moneys of the plaintiff’s assignor, lost at play by the servant, the decision of that matter must depend altogether upon the right of the plaintiff to maintain this suit as one in equity—a -question which, in my judgment, does not and cannot properly arise upon this motion. The motion in all three of - its aspects is denied, with $10 costs to abide the event.