
    The People of the State of New York, Plaintiff, v. Carlton Cadle, Defendant.
    County Court, Monroe County,
    April 10, 1958.
    
      George Hoffenberg for defendant.
    
      Harry L. Rosenthal, District Attorney (Leon N. Armer of counsel), for plaintiff.
   George D. Ogden, J.

By an indictment containing two counts the Grand Jury of the County of Monroe accused the defendant of contriving, drawing and assisting in a lottery, a felony, and in offering property for disposal dependent upon the drawing of any lottery, a misdemeanor. Both the felony and the misdemeanor are alleged in the indictment to have occurred March 11, 1958, in the city of Rochester, Monroe County, New York.

Defendant’s demurrer is directed to both counts. Nowhere in the indictment is it alleged that those participants who signed for the receipt of folding chairs, for which receipt each paid the sum of $1 and was immediately issued such chair, were to use the same in connection with any lottery or other scheme contrived by the defendant; in other words, nowhere in the indictment is it alleged that the defendant demanded or received any sum of money or other consideration for participation in the game which followed.

The indictment is fatal in this respect, for the second count fails if the first count is insufficient. As was said in People v. Burns (304 N. Y. 380, 382): ‘ ‘ requisite [allegation] is lacking that participants in the game upon which the indictment is based were ‘ persons who have paid * * * consideration for the chance ’ so as to constitute a lottery within the meaning of section 1370 of the Penal Law (People v. Shafer, 273 N. Y. 475).”

The demurrer is allowed (Code Grim. Pro., § 326).

Submit order.  