eBook details
- Title: Bressler v. Averbuck Et Al.
- Author : Supreme Judicial Court of Massachusetts
- Release Date : January 05, 1947
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 65 KB
Description
SPALDING, Justice. The plaintiff seeks by this bill in equity to establish a debt under the so called gaming statute, G.L.(Ter.Ed.) c. 137, § 1, and to reach the interest of the defendant Samuel Averbuck in a partnership 1 and apply it to the satisfaction of the debt. Samuel Averbuck, hereinafter called the defendant, demurred to the bill, and an interlocutory decree was entered on January 9, 1947, sustaining the demurrer with leave to amend within ten days. Thereafter the plaintiff filed a motion 2 to amend the suit in equity into an action at law; the motion also asked that a declaration annexed thereto, containing two counts in contract, be allowed. Subsequently, after hearing, the Judge denied the motion 'as a matter of law and not as a matter of discretion.' The case comes here on the plaintiff's appeal from the action of the Judge in denying his motion to amend and from the final decree dismissing the bill. Although the appeal from the interlocutory decree sustaining the demurrer was not taken seasonably, that decree is 'open to revision' upon the appeal from the final decree. G.L.(Ter.Ed.) c. 214, § 27; Rigs v. Sokol, 318 Mass. 337, 339, 61 N.E.2d 538. The grounds assigned in the demurrer are (1) failure to state a case entitling the plaintiff to equitable relief, (2) failure to set forth the facts with sufficient particularity, and (3) noncompliance with the requirements of G.L.(Ter.Ed.) c. 137, § 1. The first and third grounds may be considered together, as they both seek to raise the question whether a cause of action grounded on G.L.(Ter.Ed.) c. 137, § 1, can be brought on the equity side of the court. The material portions of § 1 are as follows: 'Whoever, by playing at cards, dice or other game, or by betting on the sides or hands of those gaming, loses to a person so playing or betting money or goods, and pays or delivers the same or any part thereof to the winner * * * may recover such money or the value of such goods in contract; and if he does not within three months after such loss, payment or delivery, without covin or collusion, prosecute such action with effect, any other person may sue for and recover in tort treble the value thereof'. (Emphasis supplied).