Blessing v. Smith , 74 N.J. Eq. 593 ( 1908 )

Garrison, V. C.

It is entirely clear, under the law of this state, that the transactions pleaded in the bill were gambling transactions. Flagg v. Baldwin, 38 N. J. Eq. (11 Stew.) 219 (Court of Errors and Appeals, 1884); Sharp v. Stalker, 63 N. J. Eq. (18 Dick.) 596 (Vice-Chancellor Stevens, 1902); Van Pelt v. Schauble, 68 N. J. Law (39 Vr.) 638 (Court of Errors and Appeals, 1903); Thompson v. Williamson, 67 N. J. Eq. (1 Robb.) 212 (Vice-Chancellor Emery, 1904); Myers v. Fridenberg, 70 N. J. Eq. (4 Robb.) 3 (Chancellor Magie, 1905).

In the brief of the complainant he “concedes that his bill of complaint as drawn sets up' an action, which comes within the act to prevent gaming.”

The situation is closely analogous to that dealt with in the case of Myers v. Fridenberg, supra. If the action is by virtue of the fifth section of the act it is barred by lapse of time; if by virtue of the second section, the limitation by construction may apply thereto also, and the action similarly be barred. In any event, there seems to be a complete and adequate remedy at law and no necessity for the intervention of a court of equity.

The gravamen of the complainant’s bill is that he turned over $3,250 of money to the defendants in gambling transactions. I cannot see how, under these circumstances, there can be any question of any accounting between the parties at all. The transactions which he pleads are undoubtedly gambling transactions, and he so designates them himself in his brief. If this is so, he is entitled, under the statute, to recover whatever he put up, and there is no doubt as to what he put up and no room for any accounting with respect thereto.

The complainant endeavors to break the force of this obvious course of reasoning by suggesting that if it should turn out that the defendants actually purchased certain stocks for his account he would be willing to permit them to recoup themselves for any losses with respect thereto. This, however, is a matter of grace and not of law, and does not affect the situation in the least. The only ground upon which the complainant seeks to recover is that the transactions were prohibited, and the statute enables him to recover whatever he put up with respect to the prohibited transaction. The fact that he is willing, in the face of the law, to suffer a certain loss, or to suffer loss under certain circumstances, does not change tire legal aspect of the question involved. Under the present bill, as I view it, he pleads that he was gambling, and that he put up a certain sum of money, which he specifies, and if he proves those facts he is entitled to a return of that money. There is, as has been above stated, no occasion for any accounting whatever.

Nor could the case be saved even by a resort to- the idea that a discovery is necessary, and that equity, taking jurisdiction for that purpose, would retain it for all purposes. No discovery whatever is shown to be- necessary. The complainant sets forth the date and the amount of each payment that he made to the defendants, and if he is entitled to anything he is entitled to a return of those amounts, or the aggregate thereof, and he not only does not show the need of any discovery with respect thereto, but himself possesses the best information as to- them.

The demurrer will be sustained.