McKeon v. Caherty

3 Wend. 494

• Court: New York Supreme Court
• Decided: January 15, 1830
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

In Yates v. Foot, (12 Johns, R. 1,) it was decided that when money is deposited by an agent in the hands of a stake holder upon a bet, the action was properly brought by the principal against the stake holder ; and it was also decided in that case that no action lies to recover from the stake holder money deposited upon an illegal wager. This was a decision of the common law question and has no relation to the cases of gaming and horse racing arising under the statutes on those subjects. The fifth section of the act to prevent horse racing makes every contract relating to any bet or any race or gaming of any kind void, and gives to any person who has paid any money upon the issue or event of any race or game the same remedy to recover it back as is provided by the second and third sections of the act to prevent excessive gaming. The second section of that act gives a remedy to the injured party by action of debt against the winner, if brought within three months.

In Simmons v. Borland, (10 Johns. R. 468,) and Allen v. Ehle, (7 Cowen, 496,) it was held that under the act to prevent horse racing, the action lies against the stake holder; but the statute remedy should be pursued, which is an action of debt. This objection is supposed to be technical; but without the aid of the statute, no action at all would lie. The statute remedy must therefore be pursued in form as well as substance. In Haywood v. Sheldon, (13 Johns. R. 88,) it was held that an action was well brought by an agent who makes a bet for others. On the supposition, therefore, that the actiojo. was well brought by the plaintiff and that the stake holder js liable, still, as the plaintiff cannot recover in this form of action, the judgment must be affirmed.