New-York tribune., 1895-08-29
SWEEPSTAKES NOT LEGAL.
THE PERcY-GRAY RACING LAW aD-
JUDGED UNCONSTITUTIONAL.


orcrs,oN ny JUDGE pIscHoFF IN THE COURT OF
COMMON PLEAs-IT DOES NOT AprLT
TO STAKE RACES.
Judge Bisehof. In the Court OF Common Pieas'
Yesterday handed down n decision holding that the
provisions Of Chapter No. $40 Laws OF 1895 lcoin-
monty known az the Percy-Gray Racing la~) en-
titled "An act for the incorporation OF an associa
fion for the Improvement Of the breed Of horses
and TO regulate the same and TO establish STATE
Racing Association" are within the uhbiton IN 'he
Constitution against the authorization OF any k'nn
Of gambling. and are therefore unconstitutional
The decision was rendered In the suit OF Jonn l.
Dudley against the Flushing Jockey Cup.
THE BASIS or J. C. prpLEy's srir
Dudley sued 70 recover the amount of stake
which was formed pursuant to the provisions OF
Chapter No TO Just quoted lie alleged IN he
complaint that prior 10 May N. 1875 The Defendant
corporation was incorporated 10 run races uh'ef
Section ~ the act
on May ~, 1895. Dude, entered his horse hf""n
Dick In sweepstakes race with three other horses
under tho following provisions that ihe owner or
owners Of a horse or horses may contest their
horses in said race upon contributing W. Tor eneh
horse entered. and the defendant had eon'rlpu'e'
500. which purse. together with several oontrbu'
tions should constitute sweepstakes TO be palh 10
the owner Of the winning horse.
The race TO be one mile for three-yearolds
and over The run on May -, 1895, and
the PLAINTIFF horse Brown Dick having won, Dud-
ley demanded the entire purse OF slI5 The defend
ant declined 10 pay the sl75 but offered to give
Dudley his SOS entry fee. He then instituted suit to
recover the sl75.
The Flushing Jockey Club through its counsel,
Benjamin steinhardt Ned demurrer TO the suff-
cheney OF the plaintiffs complaint In this demur-
rer he said 1.-THE defendant by his demurrer ad-
n.ts all OF the facts and presents but one question,
which is whether the said act is constitutional. II
II Is unconstitutional. the demurrer must be sus-
tained and the complaint be dismissed"
UNCONsTITuTIONAIITY OF THE ACT.
In his opinion Judge Blschoff says: The demur-
interposed generally upon the ground OF
insufncicncv but argument confined principally
10 the theory tina; the enactment above referred 10
ofYends against the provisions OF the State Consti
tuition nor shall any lottery or sale OF lottery tick
ets. pooseling bookmakns. or any kind OF gam
bling hereafter be allowed within this State and
the Legislature shall pass appropriate laws TO pre-
vent offences against any provisions OF this sec
ton Constitution OF 1894. Article L. Section %. II
1, could be said" continues Judge Rlschofr. that
the statute in question merely sought 10 suspend the
operation OF some existing penal statute with regard
20 the acts authorized by It's terms and recognized
no con,ractual right arising from transactions such
as the complaint sets FORTH the pleading should be
held insufficient in substance without touching upon
the question OF constitutionality since apart from
express legislative sanction the plaintiff could not
be heard In law to complain upon the state Of facts
inclosed."
Continuing. the decision reads 'Indubtab.y. how
ever TO my mind the statute under considera ton
recognizes a contract obligation arising from state
OF facts such as that In suit, by obvious mplica-
ton. accomplishes far-a repeal OF the section
OF the Revised Statutes above cited-and as re-
suit the plaintiffs apparent right is founded upon
an infraction OF the constitutional provision pre-
yiousy set forth.
The act (Seotion - provides AT such trotting or
running race meetings the corporation or owners
OF horses engaged in such races or others who are
not participants in the race. contribute purses,
prizes. premiums stakes 10 be contested for. but
person or persons other ti.,n the owner or own
Of horse horses con:esing in shall
have any pecuniary interess in purse prize. pre-
MUM or stake contested .o- u .uca or be en-
iitied 10 receive any poI 'n ersot after such race
MUM stake shall be al:o,. ed in accordance With
the terms and conditions q such race
milton OF pecunary interest in the result OF the
races authorized by the act Such an interest. de-
pending upon chance Of contingent event. as in
this case an interest sweepstakes abiding the
tut OF horseraee upon which all the participants
exist In legal contemplation
Further. the owner Of the winning horse is
pressed to be entitled TO the amount Of this pc
cunary Interest and the allotment OF the stake is
required TO be in accordance with the terms and
conditions OF the race.
X.
The attempt is clearly 10 legalze the wager
That this statute in so far as IL authorizes and
allows recovery for sweepstakes upon a
horserace conravenes the constitutional inhibition
against the authorization Of any kind Of gambling.
Is self-evident
The outcome Of a horserace depends upon chance
A contracf for the payment of sweepstakes is VOID
under the staiuis asainst gamng and every ele.
upon which the money is wagered or staked is pres
ent In such a case 10 bring the transaction within
the letter and spirit of the word gambling
II conclude the demurrer should be sustained. ano
judge Bischon said when seen in regard to the
decision. that the opinion rendered by him did not
that had the act not attempted to legalize sweep
stakes /, would have been sustained
COMMENTS AT THE TRACK.
Judge Bischofs decision in the sweepstakes
race said TO have been run on the grounds OF
legged racing association. called the Flushing
Jockey Club. on May l5 caused any amount OF
comment at Sheepshead Bay yesterday afternoon
Some of the racing officials were indignant while
others were amused. Everybody OF any prominence
in turf affairs expressed almost the opinion OF
the decision. 1t was as follows: The whole affair is
De Lacey blow at racing Mr.. De Lacey has ac.
cumulated a large fortune Of city poorooms and
other equally obnoxious callings. He believes that
ne has mission to reform racing out OF existence
because he is not permitted TO keep poolrooms in
New-York.
The so-called Flushing sweepstakes were run for
by horses hlred IN livery stable. and the entire
case arranged by the lawyers engaged by the pool
room magnate. OF course. the decision will cause
q great deal OF annoyance for time. but IL Is
felt that II Will be set aside on appeal The mem
bers Of the Jockey Club who present at the
races yesterday not prepared TO express an
opinion In the matter The horse-owners and
some OF the breeders less excited md
attributed all the trouble on the turf 10 a mere
handful OF poolroom men and gamblers. A leading
BREEDER said: Men who thrive by violating the laws
are expert In making test cases"
August Belmont Is in Newport James II. Koene
was not at the track yesterday afternoon. The
only prominent racing man present ex-Con-
gresham John Sanford VINO Is member of the
care 70 talkGebout the decision He is anxious to
John H. bradford. Dr G. Lee Knapp and
o. Bonner believed that the decision would be set
aside on appeal