Braverman v. Horn

NOTJRSE, P. J.

Plaintiff appeals from the order granting motion for summary judgment and from the judgment for defendant in an action upon a check issued for a gambling debt.

The complaint is in two counts; in the first appellant sues on a check to “cash” for $12,400 signed by defendant and delivered by him to William Harrah, doing business as Har

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rah’s Club in Reno, Nevada, and after refusal of payment assigned by said Harrah to plaintiff for collection; the second count is a common count for moneys advanced by said Harrah to defendant, the indebtedness for which was assigned by said Harrah to plaintiff. The answer denied any indebtedness and alleged that the check was without lawful consideration, as the consideration received was chips for the purpose of gambling in Harrah’s Club and the amount of the check represented the amount lost by defendant in such gambling; that the assignee had knowledge of said facts. The motion for a summary judgment in favor of defendant was supported by an affidavit of defendant to the same effect as his above defense, stating in detail how he gave checks for chips and new checks in return for the old ones, adding the amount of new chips he desired or subtracting the amount of chips won, which he returned. Plaintiff filed two affidavits of managers of the club stating that in the club chips are never given for personal checks, that the cashier of the club paid defendant United States money for his checks and that no restrictions of any kind were placed on the use to be made by defendant of said money.

Plaintiff did not however deny the material allegations of the answer and defendant’s affidavit that, during the period of two days and one night when defendant was shooting dice in the Harrah’s Club, the management cashed a series of checks (whether in coin or chips is disputed) the proceeds of which were all used and lost in the dice game. After defendant had lost the entire sum to the knowledge of the club the latter accepted the check in suit in lieu of all the smaller checks which were then destroyed.

Appellant argues that on a motion under section 437c, Code of Civil Procedure, the court has only to decide whether the opponent has presented any facts which give rise to a triable issue, not to determine the issue itself, citing