25 A.D.2d 878 | N.Y. App. Div. | 1966
In an action to recover upon an alleged contract to pay to plaintiff 10% of the winnings on a “twin double” wager made at Yonkers Raceway by plaintiff on defendant’s selection of horses, plaintiff, by permission of this court, appeals from an order of the Appellate Term, Second Judicial Department, entered June 25, 1965, which (a) reversed an order of the Civil Court of the City of New York, Kings County, entered December 18, 1964, denying defendant’s motion for summary judgment, and (b) granted the motion. Order of the Appellate Term (46 Misc 2d 855) reversed, with $10 costs and disbursements; order of the Civil Court affirmed; and judgment of the Civil Court, entered July 19, 1965, vacated. In our opinion, the papers tendered triable issues of fact. The current public policy of this State did not render illegal- — as a matter of law — plaintiff’s claim that a licensed betting transaction, perfected at a designated pari-mutuel track, gave rise to an agreement between the parties to divide the proceeds of a “ twin double ” winning ticket (Intercontinental Hotels Corp. v. Golden, 15 N Y 2d 9, 14-15). Sections 991 and 992 of the Penal Law, relating to illegal wagers, have no application to a bet executed at a recognized pari-mutuel track (People v. Stein, 280 App. Div. 176, 178). Under plaintiff’s version of the facts — if believed by the trier of the facts — defendant was constituted the agent of the parties to collect the proceeds of the winning ticket and cannot breach his agency by withholding and converting plaintiff’s share (Lundstrom v. De Santos, 205 Misc. 260, 262-263). In any event, the parties — so far as presently appears — were merely casual bettors and their activity as such supports no inference of law that their transaction was illegal in nature (People v. Bright, 203 N. Y. 73; People v. Pack, 179 Misc. 316; People v. Caccioppo, 270 App. Div. 904; People v. Fass, 271 App. Div. 797; People v. Farone, 308 N. Y. 305, 311; Bamman v. Erickson, 288 N. Y. 133, 136; People v. Solomon, 296 N. Y. 220, 222-223; 38 C. J. S., Gaming, § 84, p. 146). In addition, the relationship of the parties as brothers-in-law may support the enforcement of an express parol trust on the part of defendant without regard to the requirements of the Statute of Frauds (Blanco v. Velez, 295 N. Y. 224, 226). Ughetta, Acting P. J., Rabin, Hopkins and Benjamin, JJ., concur; Christ, J., dissents and votes to affirm the order of the Appellate Term, with the following memorandum: I agree with the Appellate Term that the alleged agreement of the parties to share in prospective winnings of a wager made by plaintiff at a race track on defendant’s behalf is illegal and unenforeible. This State’s Constitution prohibits any kind of gambling, lottery, pool-selling or book-making, except pari-mutuel horse betting as authorized by the Legislature (art. I, § 9, subd. 1).
