Delahunty v. Canfield , 103 N.Y.S. 939 ( 1907 )

Scott, J. (concurring):

So far as concerns the plaintiff’s first cause of action for collecting $130,000 on notes for $300,000 the plaintiff sues on an alleged special agreement, made ten years before, whereby defendant promised to pay to plaintiff twenty-five per cent of all claims he might collect which were defended or. objected to on the ground that they were gambling debts, If such a contract was, in fact, made it was, in our opinion, contrary to public policy and void, and the court should give no aid to its enforcement. The defendant was a common gambler pursuing his vocation in a house maintained by him for the purpose in the city of Hew York, and also at other places. The statutes of this State have placed gambling, such as the defendant pursued, in the category of crimes, and have expressly declared that all evidences of indebtedness, of which the consideration, in whole or iii part, is money lost at play, shall be utterly void. If gambling is criminal, illegal and immoral, and the money lost thereat is for that reason made uncollectible, it seems. to me to be perfectly clear that- an agreement to compensate a lawyer for collecting such a claim by paying him a percentage of the ^amount recovered must be treated as itself illegal and nnenforcible. Such an agreement amounts to nothing more than the employment of an attorney to collect the fruits of a crime for compensation consisting of a percentage of such fruits. In the present case not only was the claim tainted with illegality, but the person against whom it was made is shown to have been a boy under age. . If, therefore, the plaintiff’s claim upon his first cause of action is to rest upon such a contract between himself and defendant he should have been nonsuited. If, on the other hand, the claim which he collected was, as the defendant says, mainly or partly for borrowed money, as to which the defense that it was for a gambling debt would be unavailing, the case did not fall within the terms of the alleged special agreement, and $10,000 is certainly a very liberal allowance. The amount allowed by the jury and now .about to be confirmed for the services, mainly futile and often injudicious, included in.the second cause of action, appears to be, to say the least, very generous, but as to that question we are not disposed to set up our own judgment against that of the jury. We, therefore, concur in the disposition of the appeal indicated in the opinion of Mr. Justice Laughlin.

Ingraham and Clarke, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as stated in opinion, in which event judgment as so modified and order affirmed, without costs. Settle order on notice.