People v. Jarosz — 31 N.Y. Crim. 184

Majority

p. 184

RECORDER’S COURT—CITY OF COHOES,

September, 1913.

THE PEOPLE v. JOHN JAROSZ.

Headnote

Lakceny—Wagebs.

Where defendant was charged with the larceny of a keg of beer which he had delivered to complainant on the understanding that he could have it if he could carry it to a wagon, complainant having paid defendant a dollar which the latter was to keep in any event, and complainant carried the keg to the wagon, and defendant thereafter peaceably repossessed himself of the keg, held that he was not guilty, as the contract was a wagering contract, in violation of section 991 of the Penal Law, and no title to the keg had passed to the complainant by virtue of the contract.

On September 30, 1913, defendant was the owner of a keg or quarter of beer. On that day, he entered into an agreement with complainant whereby, he contends, title and possession to said beer was transferred to him. That thereafter defendant retook possession of said beer and refused to deliver it over to the complainant upon demand. Complainant charges defendant with the larceny of said keg of beer.

From the testimony of the complainant, the agreement between the parties appears to have been as follows: “ He (Jarosz) said: 6 You give me a dollar, I don’t want you to take it home, but take it to your wagon, if you take it there, you get the beer, if you drop it, you lose the beer and the dollar.’ I said: ‘ If I drop it, I lose the dollar and the beer.’ If I carried the beer to the wagon I was to have it, but John was to keep the dollar. If I dropped it, I lost both.”

p. 185

The wager was practically this: Defendant wagered his keg of beer against complainant’s dollar that complainant could not carry the keg of beer to his wagon without dropping it. Complainant wagered that he could. If he dropped it, he lost the dollar, if he carried it, he won the beer.

Black’s Law Dictionary defines a wager to be: “A wager is a contract by which two or more parties agree that a certain sum of money or other thing shall be paid or delivered to one of them on the happening of an uncertain event.”

A Wagering Contract to be: “ One in which the parties stipulate that they shall gain or lose upon the happening of an uncertain event, in which they have no interest except that arising from the possibility of such gain or loss.” The uncertain event in this case being the carrying of the beer without dropping it.

I am of the opinion that the agreement between the parties is a wagering contract and in violation of Section 991 of the Penal Law. Therefore no title passed to complainant thereby and. defendant committed no crime in retaking the same peacefully.