#### MOULTON v. WESTCHESTER RACING ASS’N et al.

(Supreme Court, Appellate Term.

November 25, 1903.)

1. Wager—Monet Lost—Right of Recovery.

Laws 1895, p. 377, c. 570, § 17, which provides that any person who on any race course shall make or record any bet on the result of any race shall forfeit the money so wagered, received, or held by him, to be recovered in a civil action by the person with whom the bet is made or *872by whom the money is deposited, enables a loser in a wager with another made on a race course on the result of a race taking place there to recover in a civil action his own money so wagered and delivered to the latter, notwithstanding the fact that he went to the race course with the intention of betting on the race and suing for a recovery of his money if he lost.

Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by Raymond C. Moulton against the Westchester Racing Association and William J. Torpie. From judgments for defendants, plaintiff appeals. Affirmed as to the first defendant, and reversed as to the second.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Howe & Hummel, for appellant.

Davies, Stone & Auerbach, for respondent racing association.

Nicoll, Anable & Lindsay, for defendant Torpie.

FREEDMAN, P. J.

The judgment in favor of the Westchester Racing Association was entered upon an order granted at the end of plaintiff’s case dismissing plaintiff’s complaint as to said racing association. The proof adduced by plaintiff wholly failed to establish any bet made or recorded directly or indirectly with said racing association, and the complaint was therefore properly dismissed as to it.

As against the defendant Torpie the case was submitted to the jury, who found a verdict for him, but the judgment entered in his favor upon such verdict cannot be sustained. It was shown and admitted that upon the race course of the Westchester Racing Association Torpie had made a bet with the plaintiff on the result of a race, and had received the money from the plaintiff. There was no evidence upon which it could be held or found that it was not the money of the plaintiff, but that some other party was the real party in interest, in whole or in part. That being so, the decision in Ruckman v. Pitcher, 20 N. Y. 9, was inapplicable, and the plaintiff’s motion for the direction of a verdict in his favor should have been granted, unless the trial justice was justified in submitting to the jury the question whether the plaintiff went to the race course with the intention to bet, and then, if he lost, to bring an action to recover the amount lost. This question was submitted to the jury, and they were instructed in various ways to the effect that, if the plaintiff went to the race course with the intention to bet upon the result of a race, and, if he lost, to sue for the recovery of his money, he could not recover. The case was thus submitted to the jury under a misconception of the law applicable to it. Section 17, p. 377, c. 570, Laws 1895, is as follows:

> “Any person who upon any race course, authorized by or entitled to the benefits of this act, shall make or record directly or indirectly any bet or wager on the result of any trial or contest of speed or power of endurance of horses, taking place upon such race course, shall forfeit the value of any money or property so wagered, received or held by him to be recovered in a *873civil action by the person or persons with whom such wager is made or by whom such money or property is deposited. This penalty is exclusive of all other penalties prescribed by law for the acts in this section specified, except in case of exchange, delivery or transfer of a record, registry, memorandum,” etc.

Even if, as contended by the defendant Torpie, the case at bar is exclusively controlled by said section, because the bet was made upon a race course operated at the time under the auspices of a racing commission sanctioned by the statute, it will be readily seen that the section provides as a penalty the absolute forfeiture of money won on a bet or wager without any limitation. No title to the money passes to the winner, and the right of action given to the loser is not narrowed as held by the trial justice. If his interpretation of the statute were correct, the very object of the statute, in giving the right of action which is to suppress the vice of gambling, would be practically defeated. The question relating to plaintiff’s intention was therefore erroneously submitted to the jury. Upon the evidence in this case and the law applicable thereto it was error to deny plaintiff’s motion for the direction of a verdict in his favor.

The judgment should be affirmed, with costs, as to the Westchester Racing Association, but on the appeal of the plaintiff from the judgment entered in favor of the defendant Torpie the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.

GILDERSLEEVE, J., concurs.

MacLEAN, J. (concurring).

In this action to recover, under section 17, c. 570, p. 377, Laws 1895, money lost by the plaintiff in a bet with the defendant Torpie on the horse “Squid” running unplaced on the defendant racing association’s track at Morris Park, in this city, the complaint was justifiably dismissed as to the racing association for failure to prove any bet made or recorded directly or indirectly with the association. Contrariwise the learned justice might without much murmur have directed a verdict against Torpie, as it was soon proven, and after a little skirmishing conceded, that Moulton bet with him on “Squid,” paid him the money, and lost the bet, and there was really no evidence upon which to hang a verdict for any one else in any action. Under the decision in Ruckman v. Pitcher, 20 N. Y. 9, it was charged that if the bet was made as a representative of Peter.De Lacy, then the action should have been brought by Peter De Lacy. True enough. In Ruckman v. Pitcher it appeared, however, that of $3,000 deposited by the plaintiff various parties whom the plaintiff had admitted to an interest in the match had contributed $2,400, and that, to complete the stake, he had furnished $600, for which latter, as the real party in interest, he had a verdict, sustained all through. The suggestion that the real party in iriterest herein was one De Lacy, and not the plaintiff, was the sole excuse for submitting this cause to the jury. That was not proven. The interest requisite to the maintenance of an action is not sympathy or malice, not sentiment or desire, not pleasure in seeing the plaintiff recover *874or hope that recovery will embarrass the defendant, or even advantage the person claimed to be the real party in interest, but such a,’, relation to the demand and its recovery that upon judgment and consequent payment the cause of action will be barred. Nothing in the evidence would authorize a recovery by De Lacy. Everything said by De Lacy and Moulton contradicts a right to such a recovery. Testimony taken in court must be' taken to mean something. Both Moulton and De Lacy said the former borrowed money from the latter. Moulton said the money bet on “Squid” was part of the money so borrowed. This left Moulton the owner of the demand, and the only one to bring the action. No one coiild prove the contrary without the evidence of one or both, and' both swore it was Moulton’s money. Upon Moulton’s recovery and subsequent Vrece.ptiori by him of its payment from the judgment debtor or on his behalf, all right and cause of action arising against the defendant out of the transaction would be barred.

.•Furthermore, it was charged in various forms, finally reduced to this:" that if the plaintiff-went there for the premeditated purpose of making a bet and bringing an action in case he lost, he could not* recover. This. was error. It was" charged upon a contention inherently voiced upon the argument -and voluminously- expanded in’ the brief that a person may not join in the" commission of .a wrong, suffer, and claim compensationfrdirf'hirn' whom hé has misle'd. The. value of the money gotten by the winner being forfeit, the winner' acquired no title to it, and for its recovery the ,loser, is. given .a remedy by action as plainly in the section'd! stattit’é" cited as if it were laid down in the Code of Civil Procedure. This obviates application of the maxim', “In pari delicto potior est conditio possidentis.”' More7 over, the Legislature, in its wisdom, -has appointed forfeiture of fhonéy wagered, with a recovery in "a civil- action, the sole sanction, for the' prohibition, in a new Constitution (article i, § 9), of gambling of this sort, by the - declaring, in the same section of the statute cited, that' uppri race tracks under" the auspices,- as is .this, of -the, state racing-commission, this ."penalty (forfeiture of wagers won) "is exclusive‘of all other penalties prescribed by law for, the acts-specified, so that on such tracks, and on such only, the operation of "paragraph '352 of the Penal Code is "suspended, and betting on horse racing is not, as elsewhere throughout the state, a public nuisance and a crime.; i.„ e., a wrong which the state notices" as injurious-to the public, and punishes' in what is called á criminal proceeding in its own' name.’ - .S.uch a' segregation of practices, called in their recognition contrary to good morals, is novel, though not wholly new in this country.- It has been, tried and -abandoned in one state of the Union, and is said to be in vogue in the Orient and elsewhere abroad as to a less námable occupation. Whether such, partial and limited suspension of a-general law of the state "be legitimate legislation within the province of a free government,, which is “to govern by promulgated,' established-laws, not to be varied iir particular cases, but to have one rule for .rich" and poor, for the favor at, court, and. the countryman at the plow,” need not be here" considered. . The errors already pointed 'out suffice for the réversal-of the--judgment'as to defendant Torpie.

*875Judgment reversed as to defendant Torpie, and a new trial ordered, with costs to appellant to abide the event, but affirmed as to defendant racing association, with costs.