Dupper v. Rogan

254 A.D. 747, 4 N.Y.S.2d 128, 1938 N.Y. App. Div. LEXIS 7450

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1938
• Status: Published

Opinion

Action, under section 994 of the Penal Law, to recover moneys bet on a set of wagers upon the outcome of horse races. Judgment for the defendant unanimously affirmed, with costs. If plaintiff was not a casual bettor he was not entitled to invoke Penal Law, section 994. The evidence presented a question of fact as to whether or not plaintiff was a casual bettor, and the finding of the jury that he was not a casual bettor has ample support in the evidence. The court correctly charged what constituted a casual bettor but, upon plaintiff’s exception and the colloquy, withdrew its definition and left it to be decided on the common knowledge of the jury. Plaintiff did not save the point. He did not make a request for a specific charge that formulated his idea of the meaning that attached to the words “ casual bettor.” (Rhinelander v. Rhinelander, 219 App. Div. 189; affd., 245 N. T. 510; Fitzpatrick v. International Ry. Co., 252 id. 127, 141.) The refusal to charge that the customer and the defendant were not in pari delicto was proper in view of the request disregarding whether or not the customer was or was not a casual bettor. It is only in the event that he is a casual bettor that the customer is not in pari delicto. (Watts v. Malatesta, 262 N. V. 80.) In the Watts case a jury was waived and plaintiff was found to be a casual bettor, either as a matter of fact or as a matter of law. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ.