Dougherty v. State Harness Racing Commission

• Decision Date: 28 June 1955
• Citation: 142 N.Y.S.2d 421,286 A.D. 837
• Parties: Petition of Edward DOUGHERTY, Stanley Dancer, Frank Safford, Maurice Pusey, Earle D. Hodgins, James Workman, Cecil Champion, Hugh Bell and Wendell Wathan, Jr., Petitioners, v. The STATE HARNESS RACING COMMISSION, a Division of the Department of State of the State of New York, and George P. Monaghan, as Commissioner of Harness Racing, Respondents, For an order under Article 78 of the Civil Practice Act reviewing the determination made by said respondents.
• Court: New York Supreme Court — Appellate Division

Page 421

142 N.Y.S.2d 421

286 A.D. 837

Petition of Edward DOUGHERTY, Stanley Dancer, Frank Safford,

Maurice Pusey, Earle D. Hodgins, James Workman,

Cecil Champion, Hugh Bell and Wendell

Wathan, Jr., Petitioners, v. The STATE HARNESS RACING COMMISSION, a Division of the

Department of State of the State of New York, and George P.

Monaghan, as Commissioner of Harness Racing, Respondents,

For an order under Article 78 of the Civil Practice Act

reviewing the determination made by said respondents.

Supreme Court, Appellate Division, First Department.

June 28, 1955.

Sidney O. Raphael, New York City, of counsel, Ralph F. Kane, William Levin, New York City, and Thomas J. Burns, Brooklyn, with him on the brief, Raphael, Searles, Levin & Vischi, for petitioner Dougherty and others.

Samuel A. Hirshowitz, New York City, of counsel, Henry S. Manley, Solicitor Gen., Albany, with him on the brief; Jacob K. Javits, Atty. Gen., for respondents.

Before COHN, J. P., and CALLAHAN, BREITEL, BOTEIN and RABIN, JJ.

PER CURIAM.

Determination confirmed.

All concur except COHN, J.P., who dissents and votes to set aside and annul.

COHN, Justice Presiding (dissenting).

The determination suspending and expelling Dougherty from the tracks in this State for a period of one year should be annulled. The Commission had no jurisdiction to punish Dougherty since he was not a licensee of the Commission, and since he was not a participant in the racing meet held on October 20, 1954, at the time of the occurrence of the conduct complained of.

From the express language of the statute, the Commission has the power to suspend or revoke licenses, L.1940, ch. 254, § 41-a, as added by L.1953, ch. 391, as amended § 7599-a, McK.Unconsol.Laws, and in addition to fine a person participating in a harness race meet other than as a patron, whether licensed or not, L.1940, ch. 254, § 41-b, as added by L.1953 ch. 391, § 7599-b, Unconsol.Laws. As Dougherty possessed no license, the Commission could not suspend or revoke a license as to him. Its only power would be to impose a fine as a participant in the race meet other than as a patron. However, the evidence did not show that Dougherty participated in the race meet. He was nothing more than a patron, and as such was expressly exempted from the Commission's jurisdiction by the language of section 41-b, Section 7599-b, Unconsolidated Laws.

Moreover, Dougherty was not guilty of any condust detrimental to the best interests of the sport within the meaning of Rule X of the New York State Harness Racing Commission, N.Y.Official Compilation of Codes, Rules & Regulations (9th Supp.) p. 571, as the testimony established that he merely polled the drivers to ask them what they wished to do. In the absence of any finding that he attempted to influence them to vote to discontinue racing immediately, there is no basis for a finding that Dougherty did anything detrimental to the sport of harness racing.

As to the petitioners other than Dougherty, there does not appear to be any substantial evidence to sustain the determination...