Weyburn v. White , 22 Barb. 82 ( 1856 )

By the Court, T. B. Strong, J.

The revised statutes relating to betting and gaming, (vol. 1, p. 667, § 8,) declare all wagers, bets or stakes made to depend upon any race, unlawful; and all contracts for or on account of any money or property, or thing in action so wagered, bet or staked, void; and by section nine it is provided that “ any person who shall pay, deliver or deposit any money, property or thing in action, upon the event of any wager or bet herein prohibited, may sue for and recover the same of the winner or person to whom the same shall be paid or delivered,” &c. The right of action to recover back money paid in pursuance of such a wager or bet depends wholly on this latter provision; no remedy being allowed by the common law. And the statute being the sole basis of the right to sue. the person specified in it, and to whom the authority is expressly given, alone can maintain the action. It is the person who shall “ pay, deliver or deposit any money, property or thing in action,” who is in terms authorized to sue, and to him is the authority confined. The liability of the winner, or person to whom the money or property shall be paid or delivered, to an action at the suit of the person paying, delivering or depositing the money or property, is in the nature of a penalty or forfeiture for the benefit of the party aggrieved; and the party aggrieved, only, can enforce it, and in his own name. The right of action will not on his death pass to his personal representatives, nor can he transfer the same to an assignee. (See Dudley v. Mayhew, 3 Comst. 9, 15; Fowler v. Van Surdam, 1 Denio, 557; Bevins v. Reed, 2 Sandf. S. C. Rep. 436.)

Cayuga General Term, June 2, 1856.

The present action cannot therefore be maintained in the name of the plaintiff; and a new trial must be granted, wiÜMSOsts to abide the event. >

T. R . Strong, Welles and Smith,

Justices.]