Maxim & Gay Co. v. Sheehan , 75 N.Y.S. 422 ( 1902 )

Clarke, J.

Plaintiff is engaged in the business of selling- tips on the races. These tips are sold in sealed envelopes at five dollars apiece. It advertises extensively; urges people to buy its information so that advantageous bets may be made; purports to report the magnificent results to bettors of following its advice. As, for instance, “ $100 bet straight and place on our three-horse daily since the opening of the Saratoga meeting won $22,000. We will forfeit $1,000 to anybody who can disprove this statement. * * * You can win all the money you want if you go to the track and back our three-horse wire today. * * * We invite the patronage of thoroughbred sportsmen only. We are sure we can make you a winner. If you are up to snuff you will have a bet down. * * * A $100 play yesterday, as directed in our three-horse wire, won $810.” It alleges that the defendants obtain the information it sells for five dollars a tip, and sells it at a much lower price, notwithstanding that there is printed on its “ bulletin ” the agreement that the purchaser acquires the information for his own exclusive use, and will not sell, dispose of or disclose the same to any other person, and plaintiff prays that an injunction issue restraining them from in any manner imparting this information to any one. A court of equity is asked to lend the aid of its great writ of injunction to preserve to plaintiff its business of selling tips to gamblers on horse races. The Constitution of the State in article 1, section 9, provides: “¡Nor shall any lottery or the sale of lottery tickets, pool selling, bookmaking, or any other kind of gambling hereafter be authorized or allowed within this State; and the Legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section.” The Court of Appeals said in People ex rel. Sturgis Y. Fallon, 152 N. Y. 1, reviewing the statutes of 1895 : “ This examination of the statutes discloses that the legislature has passed laws, the obvious purpose of which is to prevent the offenses mentioned in section nine of article one of the Constitution. Under the statutes thus passed, all the offenses there named are made felonies or misdemeanors, with the single exception that a person who, upon a race course and at a race authorized by chapter 570, shall make or record a bet or wager on the result of a contest taking place thereon, shall forfeit the value »of the money or property so wagered, to be recovered in a civil action by the person with whom such wager is made, or by whom such property is deposited, and this penalty is made exclusive of all others, unless in certain excepted cases mentioned. * * * It is manifest that the legislature regarded acts of the character of those performed by the relator as falling within its condemnation. Hence, we must assume that his acts were in conflict with the spirit and purpose of the Constitution. In pursuance of its mandate the legislature has enacted a law which forbids such acts and prescribes as a penalty that a person making a bet or record of it, at the place and in the manner named, shall forfeit an amount equal to the value of the property or sum wagered. * * * It certainly cannot be said that this was a statute which in terms authorized any of the forbidden acts. The most that can be said is that when the legislature passed that section of the statute, its effect was to reduce the then existing penalty or punishment for that particular offense.” It thus appears that by the provisions of the Constitution, and by the statutes passed in accordance therewith as interpreted by our highest court, betting and gaming on horse races is forbidden no less on race tracks than in poolrooms, though the penalty therefor prescribed is different for a violation in one place than in the other. The tips and advertisements of plaintiff are devised and intended as an aid to and an incitement of this forbidden gambling and betting, and such aids and inducements may, by bettors and gamesters, be availed of as well in poolrooms as on race tracks. This court will not lend its equitable process in aid of plaintiff in its efforts to promote and induce acts forbidden by the Constitution and the law. Motion to continue injunction pendente lite denied, with ten dollars costs.

Motion denied, with ten dollars costs.