Opinion
April Term, 1897.
C.J. Thomas, for the appellant.
Leroy Andrus, for the respondent.
In section 24, article 4, title 8, chapter 20 of part 1 of the Revised Statutes it is declared that all agreements "for or on account of any raffle, or distribution of money, goods or things in action, for the payment of any money, or other valuable thing, in consideration of a chance in such raffle or distribution, or for the delivery of any money, goods or things in action, so raffled for, or agreed to be distributed as aforesaid, shall be utterly void."
In the following section, to wit, section 25, it is provided: "Any person who shall have paid any money or valuable thing for a chance or interest in any such raffle or distribution, as is prohibited by the preceding sections, may sue for and recover the same of the person to whom such payment or delivery was made."
In section 32 it is provided as follows: "Any person who shall purchase any share, interest, ticket, certificate of any share or interest, or part of a ticket, or any paper or instrument purporting to be a ticket or share or interest in any ticket, or purporting to be a certificate of any share or interest in any ticket, or in any portion of any illegal lottery, may sue for and recover double the sum of money and double the value of any goods or things in action which he may have paid or delivered in consideration of such purchase, with double costs of suit." (2 R.S. [9th ed.] 1765, 1766.)
Apparently, this action was brought to recover money which the plaintiff had parted with, he seeking to avail himself of the provisions of the sections of the law to which we have referred. ( Hathaway v. Johnson, 55 N.Y. 93; Stockwell v. U.S., 13 Wall. 531.)
In Meech v. Stoner ( 19 N.Y. 26) it was held that the right to recover money or property lost in gaming, in virtue of the statutes, might be assigned and that an assignee might maintain an action.
In Bones v. Booth (2 Wm. Black. 1226) it was held that an "action brought by the loser to recover back money lost at play is remedial and not penal, and new trial may be had therein." In that case NARES, J., said: "The statute is remedial where the action is brought by the party injured, but penal where brought by a common informer."
That case is referred to with approval in Meech v. Stoner ( supra).
In chapter 8 of title 10 of the Penal Code (§ 323 et seq.) provision is made against lotteries, drawing lottery tickets, selling lottery tickets, advertising lotteries, offering property for disposal dependent upon the drawing of any lottery, and against other practices of a similar nature, and violations of the sections are declared to be a misdemeanor and specific penalties are imposed for violations of those sections.
This action was not brought to recover any penalty named in any of those sections. ( U.S. v. Reid, 4 Civ. Proc. Rep. 1.)
It is contended, in behalf of the plaintiff, that because the statute authorizes the recovery of the sum paid or lost, and "double the sum of money and double the value of any goods and things in action which he may have paid or delivered in consideration of such purchase, with double costs of suit," the action is an action to recover a penalty. We think the contention cannot be sustained.
In Glens Falls Paper Company v. White (58 How. Pr. 174) it was said that "To subject a party to arrest the cause of action must be a fine or penalty, and not something of a penal character."
Where a party brings an action to recover for slander, he may be entitled to recover $50 damages in compensation for injuries sustained, and he may, in addition to that, be entitled to recover $100 punitive damages, yet in no sense can the action be said to be one to recover a penalty, as the word "penalty" is used in section 549 of the Code of Civil Procedure, subdivision 1.
It has been suggested that the order of arrest may be sustained under subdivision 2 of section 549 of the Code of Civil Procedure. The contrary seems to have been held in Tompkins v. Smith (62 How. Pr. 499), and that case was affirmed in 89 New York, 602.
No case is cited, nor, after some considerable examination, has any been found, which sustains an order of arrest in an action of the character set out in the complaint in this action.
The foregoing views lead to the conclusion that the order of the Special Term should be reversed.
Order reversed, with ten dollars costs and disbursements, and motion to vacate the order of arrest granted.
All concurred, except FOLLETT and GREEN, JJ., dissenting.
Title to property cannot be acquired through a fraud, much less through a crime. ( Riggs v. Palmer, 115 N.Y. 506.) The act by which the appellant acquired the plaintiff's money was a crime (Penal Code, tit. 10, chap. 8), and money so acquired is wrongfully taken and wrongfully detained, and an order of arrest is authorized by subdivision 2 of section 549 of the Code of Civil Procedure in such cases. This view of the question was not considered in Tompkins v. Smith (16 J. S. 113; S.C., 62 How. Pr. 499; affd., 89 N.Y. 602, by a divided court and without an opinion).
Again, a motion to vacate an order of arrest cannot be made until the defendant has been arrested. (Code Civ. Proc. § 567; Kern v. Raekow, 44 How. Pr. 443; Gedney v. Haas, 50 id. 310; Van Tassel v. Marks, 4 Month. Law Bull. 19. Martin v. Gross, 24 J. S. 512, not followed.) The case last cited was decided on the ground that section 568 of the Code of Civil Procedure provides that a motion to vacate an order of arrest "may be founded only upon the papers upon which it is granted," and that the provision of section 567 that the motion can be made only after arrest conflicts with section 568. Had the order been executed the return of the sheriff would show the fact, and the affidavit of the fact of arrest would be quite unnecessary. Besides, had the defendant moved on the original papers, accompanied by his affidavit, showing that he had been arrested, the plaintiff could not have supported the arrest by new affidavits showing grounds therefor; at most he could be permitted only to deny that the defendant had been arrested. It not appearing that the order of arrest, the papers on which it was granted, or the summons had been served on the defendant, the motion to vacate the order was prematurely made.
The order of the Special Term denying the motion to vacate the order should be affirmed, with ten dollars costs and disbursements.
GREEN, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to vacate the order of arrest granted.