
    John C. Dudley, Plaintiff, v. The Flushing Jockey Club, Defendant.
    (New York Common Pleas
    Special Term,
    September, 1895.)
    Chapter 570, Laws of 1895, so far as it authorizes and allows a recovery for “sweepstakes” won upon a horse race, is violative of section 9, article 1 of the Constitution, prohibiting “any kind of gambling,” and,, therefore, invalid.
    DemubbeB to complaint.
    
      JBenjamm Stemhardt, for defendant and demurrer.
    
      Joel M. Marx, for plaintiff, opposed. .
   Bischoff, J.

The complaint in this action sets forth alii . the essential facts showing compliance by the defendant with the provisions of chapter 570 of the Laws of 1895, entitled “An act for the incorporation of associations for the improvement of the breed of horses'and to regulate the same, and to-establish a state racing commission.”

Plaintiff then alleges in detail the terms and conditions, under which a certain horse race was run under the auspices-of the defendant-; avers that the horse owned by him and duly entered for the race, agreeably to such terms and conditions, became the winner, and claims the amount of the; “sweepstakes,” to which, under his agreement with defendant, he thus became entitled, and which, upon demand, the-latter had refused to pay.

The demurrer is interposed generally upon the ground of insufficiency, but the argument was . confined principally to the theory that the enactment above referred to offends against-the provision of the State Constitution expressed as follows : “ 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.” Const, of 1894, art. 1, § 9.

If it could be said that the statute in question merely sought to suspend the operation of some existing penal statute with regard to the acts authorized by its terms, and recognized no contractual right arising from the transactions such as the complaint sets 'forth, the pleading should be held insufficient in substance without touching upon the question of constitutionality, since, apart from express legislative sanction, the plaintiff could not be heard in law to complain upon the state of facts disclosed. Gibbons v. Gouverneur, 1 Den. 170; Ruckman v. Pitcher, 1 N. Y. 392; 3 R. S. (Banks Bros.’ 7th ed.) p. 1962, § 8, art.. 3, title 8, chap. 20.

An act of the legislature is to be supported in every instance if possible, and is only to be declared unconstitutional when its language plainly precludes every reasonable construction other than that it was intended by the enactment to infract the organic law. People, ex rel. City of Rochester v. Briggs, 50 N. Y. 553.

Indubitably, however, to my mind the statute under consideration recognizes a contract obligation arising from a state of facts such as that in suit, and by obvious implication accomplishes, so far, a repeal of the section of the Revised Statutes above cited, and as a result the plaintiff’s apparent right is founded upon an infraction of the constitutional provision previously set forth.

The' act provides (§ 3): “ At such trotting or running race meetings, the corporation, or the owners of horses engaged in such races, or others who are not participants in the race, may contribute purses, prizes,, premiums or stakes to be contested for, but no person or persons other than the owner or owners of a horse or horses contesting in a race shall have any pecuniary interest in a purse, prize, premium or stake contested for in such race, or be entitled to or receive any portion thereof. after such race is finished, and the whole of such purse, prize, premium or stake shall be allotted in accordance with.the terms and conditions of such race.”

Here, then, we have an express statutory recognition of a pecuniary interest in the result of the races as authorized by the act. Such an interest depending upon a chance or contingeut event, as in this case an interest in sweepstakes abiding the result of a horse race, upon which all the participants joined in furnishing the. stake (Harris v. White, 81 N. Y. 532), did not heretofore exist in legal contemplation. Gibbons v. Gouverneur, supra. Further, the owner of the winning- horse is expressed to be “ entitled ” to the amount óf this .pecuniary interest,. and the allotment of the stake is required to be in accordance with the terms and Conditions of ' the race. t .

The attempt is clearly to legalize the wager.

That this statute, in so far as it authorizes and allows a recovery for “.swe'epstakes ” won upon a horse race, contravenes the constitutional inhibition against the authorization of “ any kind of gambling ” is self-evident.

The outcome of a hórse race depends ■ upon “chanCe” . (Irving v. Britton, 8 Misc. Rep. 201); a contract for the payment of sweepstakes ” is. void under the- statute against gaming (Gibbons v. Gouverneur, supra), and every element of . uncertainty and contingency of the event upon which the money is wagered or staked is present in such 'a case to bring the transaction within the letter and spirit of the word gambling.” / -

I conclude that the demurrer should be sustained and judgment directed for the defendant, with costs.

. Ordered accordingly.  