
    Michael Brennan, App’lt., v. The Brighton Beach Racing Association, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 14, 1890.)
    
    Bets and wagers—Legalized by chap. 479, Laws 1887.
    The selling of pools on races during the times and at the places mentioned in said act is legalized by chap. 479 of the Laws of 1887.
    Appeal from a judgment entered upon the dismissal of the plaintiff’s complaint at the circuit.
    
      Fromme Brothers, for app’lt; Thomas F. Pearsall, for resp’t.
   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 the 10th of August, 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 was 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 included 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 §§ 351 and 352 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 wagers, 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 still, 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 custodian 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 chap. 479 of the Laws of 1887, subjecting these associations to taxation upon their receipts, and by § 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 admis-" sion 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 the 15th day of May and the 15th day of October in each year, and all pool selling shall be confined to the tracks where 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 the 15th of May and the 15th of October, 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 Penal Code seem 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. M. 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 Bbunt, P. J., and Beady, J., concur.  