Mills v. Roosevelt Raceway, Inc. — 66 Misc. 2d 251

Majority

p. 251

Martin J. Mills, Appellant, v. Roosevelt Raceway, Inc., Respondent.

Supreme Court, Appellate Term, Second Department,

December 17, 1970.

George V. Marfeo for appellant. George Morton Levy and Anthony F. Correri for respondent.

The jury’s verdict established that plaintiff presented a winning ticket to defendant’s agent strictly in compliance with defendant’s rules and regulations and was thereafter disabled from completing performance by reason of the agent’s default.

The simple liability of a principal for the fault of his agent when acting within the scope of this authority has not been abrogated by the Pari-Mutuel Law. In contrast with cases relied upon by respondent this is not a case to recover a bet, outside the scope of said law. The essence of plaintiff’s charge is that there was a tortious interference with his contract which excused his full performance and for which defendant is responsible. Whether this be labeled a tort or a contract action is immaterial.

p. 252

The judgment should be unanimously reversed on the law, the motion denied and the jury’s verdict reinstated, with $30 costs.

Concur — Hogan*, P. J., Gulotta and Gligkman*, JJ.

Judgment reversed, etc.