
    Harry Mendoza, Appellant, v. Joseph Rose, Respondent.
    (Supreme Court, Appellate Term,
    June, 1904.)
    Betting and gaming — The right of a loser to recover, as for money had and received, money lost on a bet, is given by I R. S., m. p. 662, §§ 8 and 9, still survives, and has not been affected by section 17 of the Percy-Gray Racing Law of 1895.
    The provisions of the so-called Percy-Gray Racing Law (L. 1895, ch. 570, § 17) imposing upon a person, making a bet or- wager on race courses subject to that act, liability to a civil action by the person betting with him- for the amount of the bet — which liability is therein expressly denominated a penalty and exclusive of all other penalties prescribed by law for the acts specified in the section — did not impliedly repeal sections 8 and 9, I R. S., m. p. G62, declaring unlawful all wagers etc., depending on any race, and giving the loser etc. of any money etc., placed on any wager or bet therein prohibited, an action to recover of the owner etc. the money paid etc., whether or not the wager was lost.
    The remedy of the Revised Statutes still survives and is maintainable in the form of an action for money had and received.
    The action is in its nature remedial and not penal and therefore need not be brought in the county where the cause of action arose, as would be the case under Code Civ. Pro., § 983, were the action one to recover a statutory penalty.
    Where the bet is made on a race course not subject to the Percy-Gray Law, section 17 of that law can afford the defendant no defense upon the ground of an implied repeal effected thereby of the remedy under the Revised Statutes.
    Appeal taken by the plaintiff-appellant from a judgment rendered in the Municipal Court of the city of New York, sixth district, borough of Manhattan, dismissing the plaintiff’s complaint upon the defendant’s motion.
    Martin Dolphin (Joseph Folliard Perdue, of counsel), for appellant.
    Nicoll, Anable & Lindsay (De Lancey Nicoll and Archibald R. Watson, of counsel), for respondent.
   Scott, J.

The plaintiff, having bet $100 upon a horse racé and lost, sues to recover back his money. His action was dismissed upon the ground that it was to recover a penalty or forfeiture imposed by statute and, therefore, under section 983 of the Code of Civil Procedure, should have been brought in Kings county, wherein the cause of action arose. This disposition of the case was made upon the theory that, the plaintiff’s only right to recover was to be found in section 17 of chapter 570 of the Laws of 1895, commonly known as the Percy-Gray Racing Law, which imposes upon a person, mailing or recording a bet or wager upon certain race courses, liability to a civil action, at> the hands of the person betting with him, for the amount of the wager, which liability is expressly denominated a penalty, and is declared to be exclusive of all other penalties prescribed by law for the acts specified in the section. If, as the respondent insists, the only right to recover a sum staked upon a horse race is to be found in the section cited, it is clear that the action is for a penalty and that the decision below was right. The appellant, on the other hand, maintains that he still has the right to sue under sections 8 and 9, 1 Revised Statutes, 662 (1 Birdseye’s Stat. [3d ed.] 299, 300), which read as follows:

Section 8. All wagers, bets or stakes, made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty, or unknown or contingent event whatever, shall be unlawful. All contracts for or on account of any money or property, or thing in action so wagered, bet or staked, shall be void.

Section 9. Any person who shall pay, deliver or deposit any money, property or thing in action, upon the event of any wager or bet herein prohibited, may sue for and recover the same of the winner or person to whom the same shall be paid or delivered, and of the stakeholder or other person in whose hands shall be deposited any such wager, bet or stake, or any part thereof, whether the same shall have been paid over to such stakeholder or not, and whether any such wager be lost or not.”

These sections have never been expressly repealed, but the respondent’s contention is that they have been impliedly repealed by so much of section 17 of the act of 1895, as provides that the penalty therein specified shall be exclusive of all other penalties. Whether this position is well taken, or not, depends upon the question whether or not the remedy given by the Revised Statutes is in the nature of a penalty, or of a recovery upon a gwasi-contract. This very question was presented to, and passed upon by, the Court of Appeals in Meech v. Stoner, 19 N. Y. 26. In that action, which was for money lost in gaming, the plaintiff was an assignee of the loser, and the defendant relied upon the nonassignability of the cause of action. The plea was rejected, the court holding that the loser’s right of action rested upon the illegality of the transaction by which the loser’s money passed into the possession of the winner, and the absence of any just or legal title in the defendant to the thing or money in controversy. And it was pointed out quite clearly that the section authorizing an action to be brought did not create the right to recover, but merely removed the bar which otherwise would have been found in the application of the maxim " In pari delicto potior est conditio defendentis." The court cites and relies upon a number of English cases, decided under the statute of 9 Anne (from which the section of our Revised Statutes is copied), in all of which it was held that the statute, was remedial, not penal, and that the right of action rested upon the plaintiff’s continued ownership of the title to the money or property wagered, notwithstanding its delivery or payment over to a stakeholder or the other party to the bet. As further illustrating the distinction between the recovery of the money by the loser as a remedy, and its recovery by the overseers of the poor, in case the loser does not sue within three months as permitted under section 15 of the same statute, the court points out that the latter action is not for the same cause as the other but is for a ¡penalty intended to repress the vice of gambling. Weyburn v. White, 22 Barb. 82, relied upon by the appellant, was meeessarily overruled by Meech v. Stoner. The right of action, provided in section 11 of the act of 1895, is evidently and essentially punitive in its nature. By its very terms it imposes a penalty for doing a forbidden thing, and what it seeks, or professes to seek, to accomplish is to provide a punishment for the wrong done to the people of the .'State by a violation of its laws, quite a different thing from the wrong done to the individual by the acquisition of his property through unlawful means. There is nothing opjposed to this view in People ex rel. Sturgis v. Fallon, 152 N. Y. 1. It is true that, in the opinion in that case, the learned judge, who wrote for the-court, said that the action authorized by section ll was the “ exclusive remedy ” for the acts specified in that section, but a careful reading of the opinion will readily show that he was considering only the public ofíense involved in the commission of those acts, for in the very next sentence he speaks of the acts of the relator as being “ punishable only in the manner prescribed by section 17. Our conclusion is that the right of a loser upon a betting contract to recover the sum lost, in an action as for money had and received, still survives, and is in nowise affected by section 17 of the act of 1895. If so, this action was not for a penalty and could properly be brought in the county of New York.

For another reason the judgment must be reversed. The cause was dismissed upon the pleadings, before any testimony had been offered. Section 17 of the act of 1895-does not apply to every race course in the State, but only to-wagers made “upon any race course authorized by or entitled to the benefits of ” the act. The preceding sections of the act contain elaborate provisions as to how corporations or associations may become entitled to those benefits. Certainly, as to a bet made elsewhere than upon ■ such a racecourse, section 17 of the act had no application, and, therefore, could not be held to have repealed, by implication, the-sections quoted from the Revised Statutes, which are general in their scope and apply to all wagering contracts. Neither in the complaint nor answer is there any allegation that the bet upon which the action was based was made upon a race course authorized by or entitled to the benefits of the act of 1895. There was, consequently, nothing before-the justice to show that section 17 of that act applied to-the case.

The judgment, must be reversed and a new trial ordered,, with costs to appellant to abide the event.

Freedman, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  