Moulton v. Westchester Racing Ass'n , 84 N.Y.S. 871 ( 1903 )

FREEDMAN, P. J.

The judgment in favor of the Westchester Racing Association was entered upon an order granted at the end of plaintiff’s case dismissing plaintiff’s complaint as to said racing association. The proof adduced by plaintiff wholly failed to establish any bet made or recorded directly or indirectly with said racing association, and the complaint was therefore properly dismissed as to it.

As against the defendant Torpie the case was submitted to the jury, who found a verdict for him, but the judgment entered in his favor upon such verdict cannot be sustained. It was shown and admitted that upon the race course of the Westchester Racing Association Torpie had made a bet with the plaintiff on the result of a race, and had received the money from the plaintiff. There was no evidence upon which it could be held or found that it was not the money of the plaintiff, but that some other party was the real party in interest, in whole or in part. That being so, the decision in Ruckman v. Pitcher, 20 N. Y. 9, was inapplicable, and the plaintiff’s motion for the direction of a verdict in his favor should have been granted, unless the trial justice was justified in submitting to the jury the question whether the plaintiff went to the race course with the intention to bet, and then, if he lost, to bring an action to recover the amount lost. This question was submitted to the jury, and they were instructed in various ways to the effect that, if the plaintiff went to the race course with the intention to bet upon the result of a race, and, if he lost, to sue for the recovery of his money, he could not recover. The case was thus submitted to the jury under a misconception of the law applicable to it. Section 17, p. 377, c. 570, Laws 1895, is as follows:

“Any person who upon any race course, authorized by or entitled to the benefits of this act, shall make or record directly or indirectly any bet or wager on the result of any trial or contest of speed or power of endurance of horses, taking place upon such race course, shall forfeit the value of any money or property so wagered, received or held by him to be recovered in a civil action by the person or persons with whom such wager is made or by whom such money or property is deposited. This penalty is exclusive of all other penalties prescribed by law for the acts in this section specified, except in case of exchange, delivery or transfer of a record, registry, memorandum,” etc.

Even if, as contended by the defendant Torpie, the case at bar is exclusively controlled by said section, because the bet was made upon a race course operated at the time under the auspices of a racing commission sanctioned by the statute, it will be readily seen that the section provides as a penalty the absolute forfeiture of money won on a bet or wager without any limitation. No title to the money passes to the winner, and the right of action given to the loser is not narrowed as held by the trial justice. If his interpretation of the statute were correct, the very object of the statute, in giving the right of action which is to suppress the vice of gambling, would be practically defeated. The question relating to plaintiff’s intention was therefore erroneously submitted to the jury. Upon the evidence in this case and the law applicable thereto it was error to deny plaintiff’s motion for the direction of a verdict in his favor.

The judgment should be affirmed, with costs, as to the Westchester Racing Association, but on the appeal of the plaintiff from the judgment entered in favor of the defendant Torpie the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.

GILDERSLEEVE, J., concurs.