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Mendoza v. Rose

92 N.Y.S. 791 Court N.Y. App. Term Decision date 1905-03-21 English

Delivered by BLANCHARD, J.

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p. 791
MENDOZA v. ROSE et al.
(Supreme Court, Appellate Term.
March 21, 1905.)

Headnote

Horse Racing—Recovery of Wager—Complaint—Demand.
The complaint in an action under 1 Rev. St. (1st Ed.) pt. 1, c. 20, tit. 8, p. 662, §§ 8, 9, to recover money wagered on a horse race with a bookmaker, need not allege a demand for return of the money.
[Ed. Note.—For cases in point, see voi. 24, Cent. Dig. Gaming, § 87.]
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by Harry Mendoza against Joseph Rose and others. From a judgment for plaintiff, defendants appeal. Affirmed.
See 88 N. Y. Supp. 938 .
Argued before SCOTT, O’GORMAN, and BLANCHARD, JJ.
Nicoll, Anable & Lindsay, for appellants.
Martin Dolphin, for respondent.

The plaintiff seeks in this action to recover the sum of $100, the amount of a wager which he claims he made on a horse race and lost. The wager was made with the defendant Rose, a so-called “bookmaker.” The action is brought under the provisions of sections 8, 9, 1 Rev. St. (1st Ed.) pt. 1, c. 20, tit. 8, p. 662 (1 Birdseye Rev. St. [3d Ed.] pp. 299, 300). The trial resulted in a verdict for the plaintiff by the direction of the court.

At the opening of the trial, and again at the close of the plaintiff’s case, the defendant, Rose, moved for a dismissal of the complaint on the ground that it failed to allege a demand for the payment of the amount of the wager. The motions were denied, and exceptions taken. The precise question raised by these exceptions has been recently decided adversely to the defendant in Mendoza v. Levy, 98 App. Div. 326 , 90 N. Y. Supp. 748 , and therefore need not be further considered here. The plaintiff’s evidence sufficiently establishes the cause of action under the statute, and, as none of the exceptions discloses any error calling for a reversal, the judgment should be affirmed, with costs.

Judgment affirmed, with costs. All concur.

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