184 Misc. 581, Holberg v. Westchester Racing Ass'n

Citation:184 Misc. 581, 53 N.Y.S.2d 490
Case Date:February 13, 1945
Court:New York Supreme Court Appelate Division, First Department

Page 581

184 Misc. 581

53 N.Y.S.2d 490




Supreme Court of New York, First Department.

February 13, 1945

Page 582


Martin A. Schenck, Harold C. McCollom and Kenneth W. Greenawalt for appellant.

Irving I. Sternberg for respondent.


The plaintiff-respondent has recovered a judgment for damages against the Racing Association, defendant-appellant, in an amount equal to a winner's share in the pool on the winning horse 'Charlene', No. 3 in a race at Belmont Park, New York, on September 21, 1943. The action was tried, submitted to the jury and decided on the theory of damages for breach of contract. Defendant has appealed and the appeal must be decided on that same theory. Accepting plaintiff's story he handed the agent in window 181 two $50 bills and requested two tickets on No. 3 but the seller punched out two tickets on No. 4 which, over strenuous objection, plaintiff finally took after protest and waited for the winner of the race, making claim when No. 4 did not win and No. 3 did win.

Page 583

In New York there can be no such thing as a valid oral wagering contract since the Pari-Mutuel Revenue Law (L. 1940, ch. 254) makes no provision therefor and any wagering contract on horse races, other than those made in the manner prescribed by that law, is illegal and invalid. There can be no valid pari-mutuel bet or wager independent of a pari-mutuel ticket. The ticket not only is essential but is the contract itself. Moreover, under the rules of the State Racing Commission regulating the conduct of pari-mutuel betting (see L. 1940, ch. 254, § 7) 'betting other than through the 'tote' [totalizator] is strictly prohibited' for the obvious reason that it is illegal (Rules Governing the Conduct of Pari-Mutuel Betting, rule 6). The 'tote' referred to is, as is well known, the mutuel calculator and indicator referred to in the statute (L. 1940, ch. 254, § 6). There is such a machine at every race track in this State and thereon are indicated automatically the sales made through the ticket vending machines and the approximate odds on each horse as the betting progresses.

Any other bet or wagering agreement, oral or otherwise, is illegal (N. Y. Const., art. I, § 9; Penal Law, § 991) as by the amendment of section 9 of article 1, adopted in 1939, effective January 1, 1940, 'pari-mutuel betting on horse races as may be prescribed by the legislature' is the only exception from the prohibition against gambling. The Legislature in enacting chapter 254 of Laws of 1940 known as the Pari-Mutuel Revenue Act of 1940, permitted and strictly regulated pari-mutuel betting. (Matter of Stewart v. Department of State, 174 Misc. 902, 903, 904, affd. 260 A.D. 979, motion for leave to appeal to Court of Appeals denied 261 A.D. 851.) Under that law there is no wagering contract, agreement or bet between the Racing Association...

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