Zeltner v. Irwin , 45 N.Y.S. 1036 ( 1897 )

Conlan, J.

This" is an appeal from a judgment entered upon a verdict directed at Trial Term.

The plaintiff sues as assignee of a cause of action to recover moneys paid by the assignor to the defendant under an agreement that the defendant should speculate with these., moneys in future contracts for the delivery of grain.'

The action was brought under the statute of the state' com-, monly known as the “ statute against gaming.”

The contention of the defendant is that the law of Pennsylvania governs, and not the law of this state, on the ground that the contract, if any, was made within the state of Pennsylvania, arid this is about the only question of materiality that we are called upon to consider in dealing with the present appeal.

The defendant neither gave nor offered any evidence at the trial, but relied for reversal upon his exceptions to the refusal of the court to dismiss the complaint at the close of the plaintiff’s ease and upon certain other exceptions taken to the exclusion of evidence sought upon cross-examination, and to the introduction of evidence under the defendant’s objection.

The court based its decision for the direction of a verdict upon the ground that the contract was one made in New York, and to be governed by the laws of this state, and that the plaintiff having proved his case under the statute was entitled to recover; the contract in question arose substantially as follows:

Plaintiff’s assignor received by mail a circular letter post-marked Pittsburg, Pa., and purporting to be issued and sent by the defendant, who described himself as a banker and broker and held out inducements for persons to invest with him upon future contracts, and .what are usually termed, in other language, “ discretionary pools ” for the purchase and sale and future delivery of grain.

Upon the receipt of the letter or circular, the plaintiff’s assignor shortly after sent a reply directed to the defendant at the address given, and thereupon - received another letter or circular which contained a form of contract or receipt for moneys to be sent to the address given, which was that of the defendant, who was described in the circular as banker and broker, Pittsburg, Pa., and, as testified to from recollection, the circular or letter having been lost, as having Ms place in the Eerguson Block, Pitts-burg, Pa.' '

It also appears that the offer submitted by those letters or circulars was accepted and agreed to, for he sent to the defendant from New York city an acceptance thereof, together with the moneys, amounting to $1,451.36, and these moneys the defendant admits to have received, and claims to have wholly lost the same in the speculations in which he engaged.

" This acceptance by letter written in New York, and the sending of the money to Pittsburg from New York, it is claimed, fixed the place of making the contract and that the minds of the parties met here. The aid of the New York statute is then in vogue for -the recovery of the money so sent to the defendant.

The appellant consumes much space of brief to argue for a construction that shall hold the contract to have • been made without the state. ■ . '

We hardly think him serious in his contention that the contract is not one enforcible under the laws of this state because of the position he assumes, that’ if the laws of Pennsylvania do not apply, then the laws of Illinois must, and he has not pleaded or in any-.manner set out the force or effect of the Illinois statute so far as to. claim or obtain any benefit of its provisions, which are conceded to be opposed to the plaintiff’s right to recover back moneys thus invested or parted with.

• We think it entirely immaterial whether the dealings under the contract were or were not to be had in the state of Illinois.

Under the weight of an authority cited the trial court was right in holding .the contract to have been made in New York, and the case, is well stated in the following language of the trial justice, after extended. arguments ■ of counsel upon the proposition that the court had no jurisdiction of the cause of action: “ It strikes me that when Irwin sent the .circular to these parties by mail and they received it, and in reply thereto sent their check or money, then the contract was made here,”' and without reviewing the authority cited, we think this inference is fully sustained.

Having reached the conclusion that the contract was made in New York, we are not inclined to disturb the verdict.

We have given careful consideration to the other exceptions taken by the defendant, but do not think any errors were committed by the trial justice which call for a reversal.

■ Judgment affirmed, with- costs.

Ó’Dwyer, J., concurs.

Judgment affirmed, with costs.