Bamman v. Erickson

The plaintiff brought an action as assignee of John W. Austin to recover almost two hundred thousand dollars which, it is alleged, Austin paid to the defendant as “ wagers ” upon horse races. At the trial it was conceded that the defendant is “ a professional gambler engaged in bookmaking and accepting wagers upon the outcome of horse racing and other events.” He “ operated through various employees located at various offices * * * or other places for the transaction of such business maintained by the defendant within the city of New York.” It was also conceded “ that the said Austin made certain bets and wagers directly and indirectly with the defendant.” Austin produced at the trial checks and money orders in the sum of $17,879.90, which were endorsed by the defendant and which, the defendant did not dispute, were paid upon wagers Austin had previously placed with the defendant and had lost. Austin produced other evidence to show that he had made, in addition, much larger payments to the defendant.

That section provides: “ Any person who shall pay, deliver or deposit any money, property or thing in action, upon the event of any wager or bet prohibited, may sue for and recover the same of the winner or person to whom the same shall be paid or delivered * *_*.” Though the plaintiff has proven conclusively that his assignor has paid large sums to a professional bookmaker upon prohibited wagers made with the bookmaker, yet recovery has been denied to the plaintiff on the ground that the statute was intended to permit recovery of moneys paid upon bets or wagers only by “ casual bettors ” and the jury has found that the plaintiff was not a “ casual bettor.”

If a bettor who is a steady customer of professional gamblers, who resorts to pool rooms day after day, to whom gambling has become a passion so irresistible that he will even steal to obtain the money to wager; who admits that he is an “ habitual ” bettor — if such a man has no right under the statute to recover the moneys he has paid upon wagers placed with a professional gambler in pool rooms and other places maintained for the transaction of an organized and systematic business of bookmaking and accepting wagers, then Austin had no cause of action which he could assign to this plaintiff. Those facts are established conclusively but other facts, too, must be considered. Austin was a graduate of the college and the law school of a great university and the junior member of an old and respected firm of lawyers. The evidence shows that he was steadily engaged in the practice of law, was at his office on “ practically every business day when not prevented by illness ” and that he handled the legal matters “ in which he was retained by clients or which were assigned to him by the firm.” He maintained no place for the transaction of an organized and systematic business of gambling. He “ did not engage in pool-selling, bookmaking, nor as stakeholder in connection with any

The provisions of the Penal Law are intended to discourage and repress gambling in all its forms. Wagering and betting are prohibited but the penalty visited upon a person who practices “ the profession of a common gambler,” who conducts a systematic, organized business of pool-selling, bookmaking or accepting bets from others is very different from the penalty visited upon the bettor who stakes his money upon a chance. The professional gambler is guilty of a crime; his customer performs an act which the Constitution and statute have stigmatized as vicious and have declared unlawful, but the law draws a distinction between a criminal act and yielding to a vice. (People v. Stedeker, 175 N. Y. 57 ; Watts v. Malatesta, 262 N. Y. 80 .) It does not treat alike the spider who spins the web and the fly enmeshed in it.

In this case the trial judge charged that only a “ casual bettor ” may recover his losses from a professional gambler under the provisions of section 994 of the Penal Law and that if the plaintiff’s assignor made bets and wagers with such frequency and regularity that they “ take him out of the class of a casual better and place him in the professional class, in pari delicto with the defendant,” then the plaintiff cannot recover. Nothing in the; [statute nor in any opinion or decision of this court construing the statute supports the rule stated in the charge. This court has pointed out that in order to discourage betting the Penal Law, which prohibits betting, makes “ recovery by a winner impossible upon default by the loser (Penal Law, §§ 991 and 992),” and the same statute compels the “ return to the loser of voluntary payments made by him (Penal Law, §§ 994 and 995).” If recovery of gain from the illicit transaction is sought those “ in pari delicto ” are denied access to the court; but under the statute the court is open to a loser who seeks to compel the return of the winner’s ill gotten gains, though voluntarily paid and though both winner and loser are in pari delicto.

There is no suggestion in the opinion that a customer who is an inveterate, regular bettor, the weak victim of the gambling passion or habit, commits a' crime or that the defense that the parties are in pari delicto may be interposed in an action brought under the provisions of section 994. The professional gambler was denied right to recover or to offset his losses against his gains, as the court pointed out, because “ in the eye of the law the professional gambler and his customer do not stand on the same plane. They are not in pari delicto.”,. The law offers means of defense to the helpless fly, however foolish — it will not extend its aid to the designing spider.

In the majority opinion the “ fly ” is, it is true, referred to as a “ casual bettor.” That might, in other context, mean an individual who bets only occasionally and at irregular times in distinction from an individual who bets habitually and regularly. The opinion makes clear that is not the distinction the court intended. The person described as a “ casual bettor ” is an individual who has not been guilty of “ betting and gambling organized

The judgments should be reversed and a new trial granted, with costs to appellant to abide the event.

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed, etc.