The plaintiff is a manufacturer of candies, at Syracuse. The. defendants are dealers therein, at Seneca Palis. On the 27th day of July, 1871, the defendants ordered of the plaintiff’s agent 300 packages of candy and 60 pieces of silver ware to be delivered forthwith, at their place of business. The candy was put up in small packages, and in 60 of the number was put a ticket on which was marked the name of one of the articles of silver ware; and a purchaser who bought a package containing one of these tickets was entitled to a piece of silver ware named therein.
The defendants purchased the candy and silver ware to be sold as prize packages, and the plaintiff knew of the use that the defendants designed to make of the candy and silver. The property ordered by the defendants was sent to them, and they refused to pay for it, because the property was sold and delivered in violation of the statute (2 R. S. 928, &c., 5th ed.) relating to lotteries and raffling, and by that statute the sale was illegal and void.
Section 45 of that statute {Id. 931) declares that every grant &c. of any property real or personal, which shall be made in 'pursuance of any lottery not authorized by law, or for the purpose of aiding or assisting in such lottery &c. to be determined by lot or chance, is void.
The only section of the statute that can apply to the sale in question is the one last above cited. And I am unable to discover any reason for excluding it from the *434operation of that section. When the clause of the sec tian relating to the sales &c. made in pursuance of any lottery is omitted, the section reads as follows:
[Fourth Department, General Term, at Buffalo, June 3, 1873.Mullin, Talcott and E. D Smith, Justices.]
“Every grant,- bargain, sale, conveyance or transfer of any real estate, or of any goods, chattels, things in action, or any personal property which shall be hereafter made for the purpose of aiding and assisting in such lottery, game or other device to be determined by lot or chance, are hereby declared void and of no effect.” To render a sale void under this statute, the vendor must know that the property sold is to be used in aiding and assisting in a lottery, and is purchased to be so used.
The plaintiff prepared the packages of candy, with the tickets enclosed in a portion of them, entitling the one who purchased such package to an article of silver ware. Purchasers of packages had one chance in five of drawing a piece of "silver. The plaintiff knew of the use to be made of the packages, and that the title to the silver depended on chance. They therefore sold the property to the defendants to be applied to the purposes of a lottery. If this is not a sale for the purpose of aiding and assisting in such lottery, I am unable to understand what aiding and assisting within the meaning of this statute would be.
The defendants, Í suppose, sold the packages to those who sold them singly to purchasers. Those persons who sold were the ones who incurred the penalty imposed for selling tickets.
The judgment should be reversed, and a new trial ordered; costs to abide the event.