
    People ex rel. Healey v. Henry P. Forbes et al., Excise Commissioners, etc.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 16, 1889.)
    
    Excise law—Gambling.— When keeping a billiabd table not gambling—Laws 1857, chap. 628, § 7.
    The keeping of a billiard table for hire, even though the loser pays for the use, is not keeping a gambling table within the meaning, of the statute;, but if, directly or indirectly, anything else, as cigars or drinks or money-should be at stake, then a case of gambling would exist.
    Appeal from an order of the supreme court made at special term.
    This is a proceeding by writ of certiorari to review the proceedings of the board of excise of Canton, St. Lawrence county, in annulling and revoking the license of the relator, for suffering a billiard table to be kept in her hotel, and allowing playing thereon.
    
      Horace D. Ellsworth, for app’lt; Almoron Z. Squires, for resp’t.
   Learned, P. J.

—We think that the resolution revoking the relator’s license, although it was not delivered to her, was such an act of the board that she has the right to review it.

By the vote of the board, on motion of Mr. Forbes, it appears that the license was revoked because she suffered gambling in the house “as we understand the law.”

The question then is fairly presented whether, on the evidence, she did suffer gambling in the house ?

The evidence in brief is that she kept a billiard table in the house, on which persons played, upon the terms that the loser should pay for the use of the table. The game of billiards is one of skill, not of chance. It is a game for physical, though not violent, exercise. It is similar in its character to the game, lately so popular, of croquet, and not unlike in character to curling or base ball.

In People v. Sergeant (8 Cow., 139) it was decided that keeping a billiard table, where the loser paid for the table, was not gaming within the law which makes the house a nuisance.

In Hitchins v. People (39 N. Y., 454), it does not appear what games were played.

In an unreported case, The People v. Commissioner of Excise, decided in November, 1887, it was held by Mr. Justice Potter that such playing at billiards (the loser paying), was not a violation of the bond given by a hotel keeper.

In Tanner v. Trustees (5 Hill, 121), however, it was held that a bowling alley kept for hire was a nuisance at common law.

The learned justice who wrote the opinion cited many ancient cases and spoke of the immorality of Charles, the II, but said that he himself had never seem a game of billiards. Nothing therefore was decided as to this game.

It further appears that under the old law and for many years the bond of a hotel keeper was conditioned that he should not keep a billiard table, or other gaming table. "Under the present law the words “billiard table” are -omitted and the condition is that the licensee will not keep a gambling table. The respondents urge that the omission "is because it had been settled that a billiard table was a gambling table and need not be specified. It may quite as well be said that the omission was intended to indicate that a billiard table was not a gambling table. Laws 1857, chap. 628, § 7.

The case of People v. Cutler (28 Hun, 465), was a conviction of defendant as a disorderly person and the court held the evidence sufficient under Code Grim. Procedure, § 899, subdivisions 4 and 7. We do not think that that decision is conclusive on the present question.

The truth is that the evils and the attraction of gambling: arise where there is a large element of chance. And in. construing this statute we may properly consider the eviL arrived at. Our opinion is that the doctrine of People v. Sergeant and of People v. Commissioner of Excise above cited is correct, and that keeping a billiard table even though the loser pays for the use, is not keeping a gambling table within the statute.

The order should be reversed.

Ingalls, J., concurs.

Landon, J.

—The statute now omits a billiard table; it formerly specified it. It is a penal statute, and the omission signifies that a billiard table may be lawfully kept, if not, used for gambling. I do not think it safe to say that billiards are not a game of chance, but of skill. That depends-in part upon whether the players are experts or not. The terms “scratch” or “ fluke,” are of the nomenclature of the chances of the game.

Be that as it may, when the game is played upon a hired table, if the loser pays the hire he simply pays what is due the_ proprietor; the winner takes nothing. If directly or indirectly anything else, as cigars or drinks, or money, should be at stake then a case of gambling would exist. I think the legislature must have had this distinction in view, and I therefore concur in the result.  