
    Maynard N. Clement, as State Commissioner of Excise of the State of New York, Appellant, v. Joseph F. Belanger and The Fidelity and Casualty Company of New York, Respondents.
    Third Department,
    June 25, 1907.
    Intoxicating liquors — operation of slot' machine by spetpal agents — erroneous charge.
    The operation of a slot machine in a saloon hy a- special agent of the Excise Department for the purpose of securing evidence' to establish a violation of the Liquor Tax Law is not gambling by the agent. It.'is reversible error to charge that such act of the special agent is gambling, as it leads the jury to discredit his -evidence.
    Gambling defined.
    Appeal hy the plaintiff, Máynard M. Clement, as State Commissioner of Excise of the State of Mew York, from two judgments of the Supreme Court respectively in favor of the respective defendants, entered in the office of the clerk of the county of Albany, one on the ,5th day and one on the 4th day of October, 1905, upon the verdiet of a jury rendered after a trial at the Albany Trial Term, and also from an order entered in said clerk’s office on the 17th day of May, 1905, denying the plaintiff’s motion for a new trial made upon the minutes. ■
    
      William G. Van Loon and Russel Headley, for the appellant.
    
      Peter A. Delaney, Israel Belanger and Nadal & Carrere, for the respondents.
   Sewell, J.:

This is an action to recover the penalty of a bond given pursuant to section 18 of the Liquor Tax Law. The complaint alleges that the defendant Belanger violated the provisions of the bond by permitting various persons to gamble, by operating a slot machine in the place where the traffic in liquors was carried on.

The evidénce of the plaintiff consisted of the testimony of five special agents of the Excise Department. One of these agents testified that he visited the defendant’s saloon on .the 21st day of January, 1903, and saw a slot machine in the barroom, Two of .the agents testified that they operated a slot machine in the defendant’s saloon on the 23d day of January, 1903, and worn and lost money, and the other two agents testified that they visited the defendant’s saloon on the following day; that they saw a slot machine there, and each of them won and lost money operating it. The defendant gave evidence tending to show that there was no slot machine in the defendant’s saloon or upon his premises upon the occasions in question. The principal ground upon which we are asked to reverse this judgment is an exception by the plaintiff to the charge of the court.

In the charge to the jury the learned trial judge said.: “ It is the charge alleged in the complaint that these men * * * gambled there. This cannot be made gambling for the defendant and not for the plaintiff. If these men gambled there they were gamblers engaged in that business at that time. There cannot be gambling here which would mulct this defendant in damages and the gambling not have been done by the witnesses produced by the plaintiff.”

This charge was erroneous. Special agents are appointed by the State Commissioner of Excise. ' They are public officers engaged in the performance of duties prescribed by statute. ■ It provides that they “shall be deemed the confidential agents of the. State commissioner, , and shall, under the direction of the commissioner) and as required by him, investigate all matters relating to the collection of liquor taxes aiid penalties under this act and in relation to the. compliance with law by persons engaged in the traffic in liquors.” (Liquor Tax Law, § 10.)

We are of opinion that the operation of a slot machine by a special agent merely to secure .evidence to establish the commission of a crime, or a violation of the Liquor Tax Law, is not. gambling, ■

However this may be, tliere can be no doubt that the operation • of the slot- machine under such circumstances did not make the special agents gamblers.

The word “gambler” is defined by the lexicographers as “One who gambles; especially, one who makes gambling his business.” (Standard.) “One who practices gaming.” (Worcester.) “One who gambles ; one who games or plays for money or other stake.” (Webster.) One who gambles; one addicted to gaming or playing for money or other stakes.” (Century.)

In common parlance a gambler is one who follows "or practices games of chance or skill with the expectation and purpose, of thereby winning money or other property. (20 Cyc. 871; Buckley v. O'Niel, 113 Mass. 193.) There is a marked distinction between such a person and a public officer, charged with the duty of investigating violations of the Liquor Tax Law, who operates a slot machine only to secure evidence of such violation. Such an officer or agent is in no sense a party to an unlawful act. (People v. Noelke, 94 N. Y. 137; People v. Levoy, App. Div. 55; Cullinan v. Furthman, 187 N. Y. 160.) He -is not a gambler in the legal or common- acceptation and meaning of the word, and it is readily perceivable that' the characterization of the plaintiff’s witnesses as gamblers was prejudicial. It gave the jury 4 low estimate of the value of the evidence of the special agents, and may have been potent in shaping the verdict.

It follows.that the judgment and order should be reversed and a new trial granted, with costs to abide the event.

All concurred, except Kellogg, J., not voting.

Judgment-and order reversed and new trial granted, with costs to appellant to abide event. 
      
       See Laws of 1896, chap. 112, § 18, as amd. by Laws of 1897, chap. 312, The statute wa? amended by chapter 488 of the Laws of 1903.— [Rep.
     
      
      See Laws of 1896; chap. 113, § 10, as amd. hy Laws of 1897, chap. 313, and continued hy Laws of 1903, chap. 486, and Laws of 1904, chap. 348.— [Rep.
     