Mendoza v. Levy

Hirschberg, P. J.:

The plaintiff sues to recover the sum of $100 which he bet and lost upon a horse race. It is alleged in the complaint that the bet was made with the defendant and the money delivered to him on the premises or racecourse of the Coney Island Jockey Club, known as the “ Sheepshead Bay Race Track.” It is further alleged that the Coney Island Jockey Club is a “ domestic corporation duly incorporated and existing under the laws of the State of New York,” but there is no allegation that it is incorporated under the act commonly known as the Percy Gray Racing Law (Laws of 1895, chap. 570, as amd.), or that the racecourse referred to is author *327 ized by the provisions of or entitled to the benefits conferred by that act. The act is not set forth or referred to in the complaint.

The plaintiff’s cause of action cannot be regarded as one brought to recover the penalty given by section 17 of that act, which as a penalty is declared by the terms of the section to be exclusive. It is an action for money had and received, brought pursuant to the provisions of sections 8 and 9 of the Statute of Betting and Gaming (1 B. S. 662; 1 Birdseye’s B. S. [3d ed.] 299, 300, §§ 4, 5). By section 8 all wagers, stakes or bets of the kind in question are declared to be unlawful, and all contracts for or on account of any money so wagered, bet or staked are declared to be void. Section 9 provides as follows: “ 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 by such stakeholder or not, and whether any such wager be lost or not.” The right of action given by this section is not in the nature of a penalty. The provision is remedial and not penal (Meech v. Stoner, 19 N. Y. 26 , 30 ; People v. Stedeker, 175 id. 57, 62 ; Mendoza v. Rose, 44 Misc. Rep. 241 ); and is, therefore, not repealed by implication by the penalty declared in section 17 of the act of 1895, supra.

No demand for a return of the money was required before the bringing of the action. (Puckman v. Pitcher, 1 N. Y. 392 ; 20 id. 9, 11.)

The complaint contains all the facts necessary to the maintenance of an action under the Bevised Statutes, and the judgment sustaining the demurrer should be reversed.

All concurred.

Judgment of the Municipal Court sustaining demurrer to complaint reversed, with costs, and demurrer overruled. Order to be settled before Hikschbekg, P. J.