
    BRENNAN v. BRIGHTON BEACH RACING ASSOCIATION.
    
      N. Y. Supreme Court, First Department, General Term;
    February, 1890.
    
      Betting and gaming; action on fool ticket.] The effect of L. 1887, c. 4769, relating to racing upon the grounds of incorporated associations, was to suspend the operation of the sections of the Penal Code (§§ 351, 352) prohibiting betting on races for the periods and at the places mentioned in the act, but without restoring the previous law. The effect of the act was to sanction the sale of pools on races at the permitted times and places, and an action will therefore lie to recover the amount payable to the holder of a winning ticket.
    Appeal by plaintiff from judgment dismissing the complaint rendered at a trial at the circuit.
    Michael Brennan brought this action against the Brighton Beach Racing Association to recover the amount payable upon twenty pool tickets purchased by plaintiff of the defendant. The complaint was as follows: “ The complaint of the above named plaintiff, by Isaac Fromme, his attorney, respectfully shows to this court:
    “ I. Upon information and belief that at the times hereinafter named the defendant above named was a corporation duly organized under and pursuant to the Laws of the State of New York, and as such corporation aforesaid was at the said times hereinafter mentioned, lawfully engaged in conducting a race-course at Brighton Beach, in the County of Kings and State of New York.
    “II. Upon information and belief that at the times hereinafter set forth, said defendant in connection w-ith its said race-course, was also lawfully engaged in the selling of tickets or pools upon each of the said races conducted as aforesaid by it, whereby it promised and agreed in consideration of the sum of money paid by the purchaser of said ticket or tickets, that if the horse represented by the ticket so purchased as aforesaid should win the race, then that the pool formed by the sale of tickets upon such race should be divided amongst the purchasers and the holders of the tickets upon the winning horse less a commission to said defendant.
    “ III. That on the 10th day of August, 1887, at said Brighton Beach, this plaintiff requested said defendant as aforesaid to sell him twenty tickets at the price of five dollars each, upon a horse known as 1 Elsie B.’ on that day entered to run in one of the races conducted as aforesaid by said defendant; and that this plaintiff thereupon paid to said defendant for the same the sum of one hundred dollars, and the defendant delivered to this plaintiff the said twenty tickets, and informed this plaintiff at the time of said sale and delivery, that the aforesaid tickets were upon and represented said horse, ‘ Elsie B.’
    “ IV. That the said horse, ‘ Elsie B.,’ did on the day aforesaid win in said race, and that by reason thereof and the moneys so paid as aforesaid, this plaintiff became entitled to receive from said defendant as plaintiff’s share of the pools sold by defendant on said race, the sum of $765.
    “ V. That thereupon, this plaintiff demanded from said defendant the said sum of $765, but defendant refused to pay the same to him, and stated to this plaintiff, as the reason therefor, that it, the said defendant, had made a mistake and delivered to plaintiff twenty tickets upon a horse other than the said horse ‘ Elsie B.’
    “VI. That defendant has not paid said sum of $765 to this plaintiff or any part thereof.
    “ Wherefore, plaintiff demands judgment against said ■defendant for the sum of $765 with interest from August 10, 1887, besides the costs of this action.”
    The defendant in its answer denied all the allegations contained in the complaint except the first paragraph.
    On the trial the court at the close of plaintiff’s evidence directed a dismissal of the complaint, and from the judgment entered thereupon this appeal was taken.
    
      Isaac Fromme, for appellant.
    I. The defendant cannot raise the question of illegality because not pleaded in its answer (McKyney v. Bull, 16 N. Y. 297, 309; Martin v. Smith, 4 Bing. N. C. 436; Button v. McCauley, 38 Barb. 413; Weaver v. Barden, 49 N. Y. 286 ; O’Toole v. Garvin, 1 Hun, 92; Fenwick v. Laycock, 12 B. 414; Catlin v. Gunther, 1 Duer, 253, 264).
    II. The transaction if admitted to be a bet, was not void and against the statute (Van Valkenburgh v. Torrey, 7 Cowen 252; Gibbons v. Gouverneur, 1 Den. 170; Harris v. White, 81 N. Y. 544; Da Costa v. Jones, Cowp. 729; Baun v. Riker, 4 Johns. 427; Hoyt v. Cross, 108 N. Y. 76; Butterworth v. O’Brien, 23 Id. 275; Rosa v. Butterfield, 33 Id. 665; Ruckman v. Pitcher, 1 Id. 392; Verona Chase Co v. Newstaugh, 50 Id. 314).
    IY. The transaction was not a bet (People v. Sergeant, 8 Cow. 139).
    
      Thomas F. Pearsall, for respondent.
    I. The action will not lie (Ruckman v. Pitcher, 1 N. Y. 392 ; Gibbons v. Gouverneur, 1 Den. 170; Ruckman v. Bryan, 3 Id. 340; People v. Kelly, 3 N. Y. Crim. R. 272 ; McCartee v. Orphan Asylum Society, 9 Cow. 437; Mark v. State, 97 N. Y. 572; William v. Potter, 2 Barb. 316 ; People v. Deming, 1 Hill, 271; Hudson Iron Co. v. Alger, 54 N. Y. 173; Jerome Park Co. v. Board of Police, 11 Abb. N. C. 342; People ex rel. Ottolengui v. Barbour; 5 N. Y. Crim. R. 381).
   Daniels, J.

The defendant is stated in the complaint to have been a corporation organized under the laws of this State, and lawfully engaged in conducting a race-course at Brighton Beach, in the County of Kings. This allegation was not denied by. the defendant’s answer, and the facts, therefore, so far as they are in this manner alleged, were-admitted by it. It is further stated in the complaint, and the evidence directly tended to prove the truth of the statement, that on August 10, 1887, at Brighton Beach, the defendant sold and delivered to him twenty tickets, at the price of five dollars each, upon a horse known as “Elsie B.,” which on that day was entered to run in one of the races-conducted by the defendant. And that in the race which afterwards took place, this horse was the winner, entitling the plaintiff to receive upon his tickets the sum of $765 out of the pools sold on that race. The proof which was given tended to show the purchase of the tickets by the plaintiff on the race grounds from a person apparently engaged in the business and occupation of selling them, and his refusal to pay to the plaintiff the amount which, according to the tickets and the result of the race, he had become entitled to-receive. At the close of his evidence a motion was made to dismiss the complaint, upon the ground that the transaction was a gambling one and he could not recover. The-court adopted that view of the case and dismissed the complaint, to which the plaintiff excepted. And whether this wa£ the correct, view to take of the law of the case, is the only question to be considered upon the appeal, inasmuch as no other objection was raised to the right of the plaintiff to maintain the action.

What is stated to have taken place at the time of purchasing the tickets, and the amount payable .thereupon in case of a successful termination of the race, was in substance and effect a bet or wager upon the speed of the horse. And under the statute of the State preceding the enactment of the Penal Code, the contract in this manner intended to-be made was declared to be void (2 R. S. 6th ed. 918, § 26). This section of the act ineludéd all wagers, bets or stakes -depending upon any race, or any lot, chance, casualty, or unknown or contingent event whatever. And all such bets .and stakes were thereby made unlawful, clearly including the case presented by the pleadings and proof in favor of the plaintiff. This remained the law of the State until the enactment of the Penal Code, which, however, was not intended to, and did not legalize such a transaction. But ■so far as sections 351-2 affect bets and wagers and the selling of pools, their illegality was not changed, but the punishment for violating these sections by bets or wagers made or pools sold, was greatly increased in its severity. "These sections provided and declared that,

Penal Code, § 351. A person who keeps any room, •shed, tenement, tent, booth or building, or any part thereof, -or who occupies any place upon any public or private ^grounds within this State, with books, apparatus or paraphernalia, for the purpose of recording or registering bets •or wages, or of selling pools, and any person who records or registers bets or wagers, or sells pools upon the result of .-any trial or contest of skill, speed, or power of ■endurance, of man or beast, or upon the result of .any political nomination, appointment or election; or being the owner, lessee or occupant of any room, shed, tenement, tent, booth or building, or part thereof, knowingly permits the same to be used or occupied for any of these purposes, or therein keeps, exhibits or employs any device or apparatus for the purpose of recording or registering such bets or wagers or the selling of such pools, or becomes the custordian or depository for hire or reward, of any money, property or thing or value staked, wagered or pledged upon .any such result, is punishable by imprisonment for one year, or by fine not exceeding $2,000 or both.”

“ Penal Code, § 352. All racing or trial of speed 'between horses or other animals for any bet, stake or reward, •except such as is allowed by special laws, is a public nuisance ; and every person acting or aiding therein, or making or being interested in any'such bet, stake or reward, is-guilty of a misdemeanor; and in addition to the penalty prescribed therefor, he forfeits to the people of this State all title or interest in any animal used with his privity in such race or trial of speed, and in any sum of money or other-property betted or staked upon the result thereof.”

And it was one of their prominent objects to produce the-discontinuance of bets and wagers made in any form upon the speed or power of endurance of man or beast. And if" they had been left undisturbed by the action of the legislature, this action clearly could not be maintained. But a change was again made in the law by chapter 479 of the-Laws of 1887, subjecting these associations to taxation upon their receipts, and by section 4 of the act prescribing the-period during which racing with horses should be legal, and inferentially declaring during what time pools upon such races might be sold. By this section races have been allowed! to be conducted on the grounds of the association for the period of not exceeding thirty days in each year. And admission to these races was allowed to be made of the- - public. And the section then declares “ That such racing and all pool selling in this State shall be confined to the period between May 15 and October 15 in each year, and all pool selling shall be confined to the tracks where the races take place, and on the days when the races take place.”" While this latter part of the section does not expressly declare that pool selling shall at the times and places-mentioned become legal, it inferentially discloses the intention of the legislature to have been to legalize such sales. They are neither condemned nor forbidden, but they are-regulated. And when this regulation was in this way prescribed, it must have been intended by the law that the-sales might be made, if that was done within the restrictions-of these regulations. There would have been no reason nor sense in declaring that the pool selling should be confined: within the period mentioned, and at the place designated,, unless it was intended to sanction the right of the association» to make the sales. The effect of the provision is, that sales of pools may be made if they are made between May 15 and October 15, and confined to the tracks where the races take place, and on the same day as the races for which the sales, may be made. And that this was intended to be the effect of the law, is further sustained by a provision contained in the same section, declaring that these two sections of the Penal Code should not apply to the grounds of the association during the days in each year in which the races have been in this manner authorized. The effect of these two sections of the Penab Code seems to have been so far to supersede or repeal so much of the preceding statute as applied to the racing of horses by or under the authority of associations of .this description. And then this section of the act of 1887 has for the period mentioned suspended these sections of the Code, without restoring the preceding law, rendering them for the time mentioned in it inapplicable to such racing. And by proceeding further and prescribing the regulations for pool selling, no other conclusion is left open for adoption than that the legislature intended to sanction these sales. And the evidence which was given by the plaintiff and the other witness sworn on his part upon the trial, was such as to support the conclusion that the tickets purchased by him were pool tickets upon the racing of horses, and that they were purchased at the time and at the place this statute permitted that to be done.

The case of Jerome Park Co. v. Board of Police, 11 Abb. N. C. 342, is not applicable to this controversy, for that arose under the law as it existed in 1882, before the enactment of this later statute. As the law then stood this transaction would clearly have been unlawful and criminal. But as it has been changed by this section of the act of 1887, it was legalized at the time and place, when these tickets are said to have been purchased. The judgment should therefore be reversed and a new trial ordered, with costs to the. plaintiff to abide the event.

Van Brunt, P. J., and Brady, J., concurred.  