
    CORRIGAN v. CONEY ISLAND JOCKEY CLUB.
    
      N. Y. Superior Court, Special Term;
    
    
      August, 1891.
    1. Contract; gaming transaction.] The statute against gaming refers to transactions where one party to the wager loses and the other wins; and it does not therefore apply where the stake is put up by a third person.
    2. The same.] An agreement by a horse racing association by which it offers a prize to the owner of the winning horse entered for a race, although such prize be in part made up from the entrance fees paid by the competitors, is not in violation of the statute against gaming, and is in effect sanctioned by L. 1887, c. 479, limiting the application of the gaming statute as to racing associations.
    31 Injunctions] Preliminary injunction to prevent the violation of an agreement, granted, the burden of proof being on defendant to show plaintiff’s consent to cancellation of the agreement.
    4. The same.] A preliminary injunction to enjoin a racing association from violating its agreement by not permitting a horse to compete at a race for which it had been entered, granted upon the ground that, if the horse should be excluded, plaintiff would be remediless, as it would be impossible for him to prove that the horse would have won.
    5. Form.] Form of complaint in an action against a racing associ'ation for a mandatory injunction to permit a h orse to run in a race for which it had been entered.
    Motion for a preliminary injunction in an" action by Edward Corrigan against the Coney Island Jockey Club for a mandatory injunction to permit plaintiff’s horse to run in a race for which it had been entered.
    The complaint was as follows :
    1. That at all times hereinafter mentioned the plaintiff was, and is, engaged in the business of breeding and running horses for purses and stakes at the different racetracks throughout the United States, and that in the course of the plaintiff’s business he has stables at different race-tracks throughout the United States, at which racetracks the horses owned by the plaintiff are run.
    
      2. That the defendant is a corporation organized under the laws of the State of New York, and its office and place of business is in the city of New York, and that the said defendant owns and conducts a race-track at Sheepshead Bay, in the town of Gravesend, county of Kings and State of New York.
    3. That one of the objects of the said defendant, the Coney Island Jockey Club, is to improve the breed of horses ; and for that purpose the said race track aforesaid is conducted by said defendant, and certain stakes and purses are made up and horse races are run in order to. test the power, endurance and speed of horses.
    4. That during each year, for several years past, there have been conducted at the said race track by the saidl defendant, two meetings, called respectively a Spring and Autumn meeting; being a number of days during the Spring and Autumn of each year which are devoted to races.
    5. The said defendant, the Coney Island Jockey Club, in the course of its business in conducting the said race track, makes up what are known as.stake and purse races.
    Stake races are made up in the following manner:
    6. The association offers a certain amount of money to be added to all the money received from the owners of various horses who desire that their horses may rum in such stake races ; the whole amount of money is put together, and forms what is called a “ stake,” which, according to the terms and conditions of the race, is either given to the owner of the horse winning the race, or divided in certain proportions among the first, second and third horses. These stakes are open for entries many months, and sometimes two or three years, before the day fixed for the running of the race.
    7. In stake races each owner is compelled to enter his horse before a certain time and to pay a certain amount, which is forfeited in case the owner shall, within a certain time, declare that his horse will not enter in the contest.
    
      8. Among the stake races arranged by the defendant, is a race known and called by the defendant aforesaid, “The Futurity.” This race is a stake race in which the owner of a mare in foal enters the get of such mare to run at the age of two years. Thus the entry to “ The Futurity ” must be made more than two years before the ■day fixed for the race, and actually before the horse which is to take part in the said race is born.
    9. In the year 1888 the said defendant opened a race ffor entries known as “The Futurity,” to be run on Saturday, August 29, 1891, and in providing for said race made the following conditions: The Futurity, a sweepstakes ■for two years’ old foals of 1889, by subscription of $25 -each for mares covered in 1888, and of $50 each for the •produce of such mares unless struck out by July 15, 1890; •or $100 unless struck out by July 15, 1891; all starters to pay $50 additional, all of which shall go to the second .and third horses, as further provided ; the Coney Island Jockey Club to offer $12,500; the second to receive $2,000 of the added money and two-thirds of the starting money; the third $i,ooo of the added money and one-third of the starting money; the breeders of the winner and of the second horse, namely, the owners of the mare at time of foaling, to receive $1,500 and $1,000 of the added money respectively, whether they be the owners of the horse when the race takes place or not; winners, when carrying standard weight for age, at the course where the race was run, of $3,000, 3 lbs.; of two such races of $3,000, or one of such race of $5,000, 7 lbs.; of two of $5,000, or of one of $10,000, 12 lbs. extra; the produce of mares or stallions which have not produced a winner prior to January 1, 1889, allowed 3 lbs.; of both, 5 lbs., the produce to be entitled to such allowance at time of starting whether claimed or not in the entry of the mare. Maidens allowed 10 lbs., which allowance shall not be cumulative. Mares may be entered by persons not their owner, the owner having the prior right. If a mare entered in this stake drops her foal before the 1st of January, or if she has a dead or more than one foal, or is barren, the entry of such mare is void, and if the entrance money has been paid it will be returned. By filing prior to July 15, 1890, with the Coney Island Jockey Club, an accepted transfer of the produce with its engagement for the Futurity Stakes, the original subscriber will be released from any liability as to the engagement of the produce, leaving the purchaser liable for the same unless duly struck out, remaining himself liable for the subscription of $25 for the mare only should his transferee default. Should a subscriber or transferee die before the race,,the entry shall not be void, provided it be assumed by the then owner of the horse, notice in writing to that effect, accompanied by the payment of all accrued liabilities for such horse in the stake, being given within three months after such demise. In such case the entry shall be dependent of all other racing obligations or entries of the original subscriber or transferee.
    10. That during the year 1888 or 1889, in accordance with the said condition, General Jackson, the owner of Belle Meade Stud Farm, of Nashville, Tenn., entered for the said race known as “ The Futurity,” to be run Saturday, August 29, 1891, at said race course at Sheepshead Bay, the get of a certain thoroughbred mare known as Brunette, then in foal, which had been covered during the year 1888 by a certain thoroughbred race-horse known as Iroquois.
    11. That subsequently and during the Spring of 1889, the said mare Brunette foaled a certain bay colt, which was subsequently named Huron.
    12. That thereafter and during the Spring of 1890, when the said colt was what is known as a yearling, the plaintiff herein purchased at public auction the said horse Huron, together with all the engagements of the said horse, which included the entry of the said horse Huron, the get of the said mare Brunette, for the said stake race known as the “Futurity’’ of August 29, 1891.
    13. That the said plaintiff, by means of such purchase, thereby became a subscriber and entitled to run the said thoroughbred horse Huron in the said stake race known as “ The Futurity” on the said day.
    14. That the said race-horse Huron is at deponent’s stable, thoroughly prepared and ready to enter into the said contest and run for the said stake.
    15. That the said defendant, the Coney Island Jockey Club, has unwarrantably and illegally refused to permit the said horse, although properly entered in the said race aforesaid, to run therein, and although this deponent, on behalf of said plaintiff, has tendered, in accordance with the conditions of said race, the said sum of $250, in order that said horse may be enabled to start in said race, the said defendant refuses to permit the said horse to enter-in the said contest, basing its refusal upon the claim that one Carter had declared to it, the said defendant, during the said Summer of 1891, that the said horse Huron was out of the said race. That the said Carter was not-the agent of the plaintiff at such time, nor did the said Carter, at such time, have any connection with the stable of the plaintiff nor with the said horse Huron, nor had he any authority from the plaintiff nor the said General Jackson to make such declaration.
    16. That as evidence of the fact that the defendant now proposes to prevent said horse from entering into the said contest, the said defendant has issued its pro-gramme for the whole of the said meeting, in which are • included all of the horses haying a right to run for the different stake races during the said meeting; and the defendant has purposely omitted from the said programme the name of the said horse Huron as an entry for the contest known as “ The Futurity.”
    17. That the said stake, “The Futurity,” is a very valuable one, which in deponent’s opinion is worth about seventy thousand dollars, but which the said-defendant— the Coney Island Jockey Club—advertises is worth at least fifty thousand dollars to the winner.
    18. That the refusal of the said defendant, the Coney Island Jockey Club—to allow the said horse Huron to compete for said stake when the owners of the said horse have complied with all the requirements and conditions of the said race is unjust and unfair, and is a violation of the contract which the defendant makes with each of the subscribers to said stake at the time of the entry aforesaid.
    19. That unless the said horse Huron be permitted to. enter into the said contest, the damages which the plaintiff will sustain by reason of the refusal of the said defend-' ant, as aforesaid, are irreparable and cannot be estimated in an action at law, for it cannot be determined in such an action whether the said horse would have defeated the other horses in said contest and won the said stake.
    20. That if the plaintiff be deprived from entering the said horse in said contest, his loss will be increased by the fact that if the said horse should win the said stake the value of said horse would be largely enhanced.
    21. That no injury whatever can accrue to the said defendant by permitting the said horse Huron to enter the said contest, while the damages which the plaintiff, will sustain will be irreparable and cannot be compensated in any proceeding at law.
    Wherefore, the plaintiff demands judgment against the said defendant; that a mandatory injunction issue, requiring the said defendant aforesaid to permit the said horse Huron to enter into the said contest known as “ The Futurity,’’ and to run at the said race-track, known as the Sheepshead Bay Race-Track aforesaid, Aug. 29, 1891, in the said race known as “ The Futuritythat the said defendant, its agents and servants be enjoined from interfering with the said horse or preventing the said horse from engaging in the said contest aforesaid ; second, that the plaintiff have such other and further relief in the premises as to the court may seem just; and third, that the plaintiff have the costs of this action.
   McAdam, J.

The novelty of the application is no argument against it, if it finds solid support in jurisprudence. At common law, bets or wagers upon a horse race were legal and it required a statute to make them unlawful. This statute prohibited bets and stakes, but was aimed at a race in which the competitors put up the money, and where one had the chance of winning from the other, as in Gibbons v. Gouverneur (1 Den. 170), and did not apply where the stake was put up by an outsider. The payment of entrance fees by the competitors to the racing association, or their incorporation into the stake furnished by it, did not offend the statute (Jordan v. Kent, 44 How Pr. 206; Costello v. Curtis, 13 W. Dig. 20; Harris v. White, 81 N. Y. 532). The statute provisions were substantially re-enacted in the Penal Code (sections 351, 352), but are by the act commonly known as the Ives bill made inapplicable to racing associations during stated periods, May 15 and October 15 in each year (see Laws 1887, ch. 479). This legislative expression indicates a tendency on the part of the State to relax previous laws against the racing of animals, and interpreted in the light of the authorities cited, relieves the contract sought to be enforced of all taint of illegalityillegal gaming implies loss or gain by the parties determined by lot or chance—that is, what the one party to the wager loses the other wins. A purse, prize or premium contributed by a stranger for the doing of something by others is quite a different thing. ' The person offering the stake has not a chance of gaining the thing offered, and has no pecuniary interest in the strife made by the contestants. Such a contest, where the contestant has all to gain and nothing to lose, is not illegal, and since the Ives bill of 1887 (supra) has in effect legislative sanction. The defendant does not seek to withdraw its offer, or repudiate its promises. It stands upon the offer as a contract, and it will be treated accordingly. It declines to permit the colt to run on two grounds—first, because, as it says, the colt was not sold with “its engagements,” and next because the former owner, on May 4, 1890, cancelled the entry. The plaintiff bought the colt April 25, 1890, as “ eligible to the futurity race,’’ which means legally qualified to enter into it.” This being the plain import and intent of the sale, the former owner could not, after disposing of the colt as eligible,'do any act after the sale that could make him ineligible. The colt was sold with “ this engagement” if no other. It is not contended that the entry is a personal privilege, for the rules of the defendant permit a sale with “ the engagement,” nor is the transfer required to be evidenced by a writing except where the nominator dies before the race. The defendant also claims that the plaintiff consented to cancel the antry, but this is disputed, and as the affirmative of proving such consent is on the defendant, the fact has ' not been established by evidence of that preponderating character that can be called conclusive.

As racing associations have by legislative enactment been brought within the pale of the law, they must not complain if the law acts upon them and enforces their agreements as it does the promises of other associations and corporations. The rights and obligations of the parties may be more satisfactorily established and determined at the trial than they can be within the short time allowed for the decision of this motion. The plaintiff has equities, and is entitled to relief. He bought the colt with the entry into the futurity race of 1891, and may have paid more for it on that account. It will be more valuable if it wins. To exclude the colt from the race would deprive the plaintiff of all possibility of righting his grievance, for he could not prove that his horse would have won the race; a trial on the track in company with the other competitors will alone determine that. The plaintiff should not be. deprived of large possible gains without a judicial determination after a formal trial of his action, and a hearing on the merits. Permitting the plaintiff’s colt to run can do the defendant no possible injury. The colt has a splendid record, and ought to be welcomed to the struggle. Under the circumstances the interests of all parties will be best conserved by permitting the horse to run in .the race in order that the status of the owner may be ascertained. If it loses the race the absence of all claim is at once determined. If it succeeds, the plaintiff is • furnished with a basis upon which to assert his legal rights. This will not prevent the defendant from determining in its own way which horse rightfully entered the race, or won the stake, or from paying it over according to his decision. It simply preserves whatever liability, legitimately flowing from the contract, it may have incurred to the plaintiff, and this may be determined in an action to enforce the same. To this extent the plaintifFs right to equitable relief is clearly established.

An injunction will be granted to carry into effect these views. It will be conditional upon the payment or tender of the $250 fee to the defendant, and the filing of the usual undertaking in the sum of $1,000. 
      
       See 23 Abb. N. C. 447 ; Alb. Brief on Pleading, 88, § 94.
     
      
       See Brennan v. Brighton Beach Racing Asso., 24 Abb. N. C., 305.
     