11 Abb. N. Cas. 337 | N.Y. Sup. Ct. | 1882
“ I agree with the learned counsel for the defendants, in regard to the propositions stated in the first and second points of his brief, to wit: That if the acts done at Madison Square Garden during the walking' match, and
With regard to the first proposition, I deem it sufficient to say that “ book-making ” appears to me to be a plain violation of the statute. Chapter 178 of the Laws of 1877, provides “ that any person who shall keep any room or building, or any part or portion of any room or building, or occupy any place upon public or private grounds, anywhere within the State, with apparatus, books or paraphernalia, for the purpose of recording, or registering bets or wagers, or of selling pools, and any person who shall record or register bets or wagers, or sell pools, upon the result of any trial or contest of skill, speed or power of endurance of man or beast * * * or being the owner, lessee or occupant of any such room, building or part or portion thereof, shall knowingly permit the same to be used or occupied for any of the purposes aforesaid * * * shall be deemed guilty of a misdemeanor.” It appears from the affidavits read on the part of the defendants, that there were in Madison Square Garden eight or ten tables or stands for the purpose of book-making, and that behind each of said tables or stands were one or more individuals who presided over the stand; that hanging up behind each of said tables was a black board on which was inscribed the names of each of the contestants in such walking match, and the state of the current odds against each of said contestants, for the first and second places in the finish of said walking match respectively; that the state of such odds was constantly changing, and that on each of such changes the individual
After examining the act of 1877,1 am of the opinion that the plaintiff’s position in this respect cannot be sustained. The appliances which were used during the walking match, and which are described in the defendant’s affidavit, seem to me to come directly within the language of the statute. The tables, books, boxes and blackboards, may fairly be classed as “ apparatus ” and a paraphernalia,” and the “ books,” as books for the purpose of recording or registering bets o r wagers. The fact that book-making has heretofore been publicly permitted, cannot of course have any weight as against the express language of the legislature, and I think that the plaintiff is not entitled therefore to the injunction which he seeks.
In the recent case of Haley agt. Creidge (reported in the Daily Register, March 11, 1882), before Mr. justice McjAdam of the marine court, it was held that book-making was only another name for gambling; and that all contracts made in furtherance of bets and wagers were illegal and void, and that no recovery could be had upon them in a court of justice. In that case the plaintiff sued the defendant to recover a sum of money, for services rendered in going on the race course and ascertaining, from the owners and others, the condition of the horses about to enter upon the race, so that the defendant might regulate his book and his betting upon the result. I entirely concur with the learned justice in the views which he expressed in that case, and think that if there is any difference between the case at bar, and the case before him, the case at bar presents a stronger violation of the statute.
Entertaining these views, I might stop here; but I deem it proper to add, as already intimated, that even if the plaintiff was engaged in a proper and lawful calling, as the remedy which he invokes is an injunction to prevent his arrest, or the arrest of his employees, such a remedy should not be accorded
In the case of Birch agt. Cavanaugh (12 Abb. [N. S.], 410, 418) the general term of the third department held, than an injunction would not lie merely to restrain an illegal arrest, and that a citizen could not maintain an action to restrain aldermen of the city from acting as the common council, even where the acts sought to be enjoined include the arrest of the plaintiff. In that case the plaintiff and nine others of the members of the common council of the city of Albany brought an action against Cavanaugh and eight others, three of whom were the city marshal and his assistants, and the others were the remaining members of the board of common council. The object of the action was to enjoin the latter from assuming to act as the minority of the common council, and to enjoin the marshal and his assistants from executing their order to arrest the plaintiffs, and bring them in to an alleged meeting of the common council held by the minority. Learhed, J., in delivering the opinion of the court, says: “ I am not aware . that injunctions are granted to restrain threatened arrests, and this is for a very good reason. If the person is illegally arrested, he has the prompt and efficacious relief by habeas corpus, and he has also redress from the wrong by an action of damages. Injury by an illegal arrest is not of such an irreparable nature that it cannot be compensated in damages. It. is true that injunctions are sometimes granted where other remedies exist; but generally those are cases where the other remedy would be inadequate, not where, as in this case, the other remedy is ample. No authority was produced on the ..argument for an injunction to restrain threatened injury to the person.”
It seems therefore, to me, conclusively to follow, that even if book-making is not a violation of the statute, the plaintiff is not entitled to a continuance of his-injunction. ■
The motion to continue the injunction is denied, and the temporary injunction is vacated, with ten dollars costs.
