Mendoza v. Rose

46 Misc. 614, 92 N.Y.S. 791

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1905
• Status: Published

Opinion

Blanchard, J.

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 Bose, a so-called “ bookmaker.”

The action is brought under the provisions of sections 8 and 9 of 1 Bevised Statutes, 662, 1 Birdseye (3d ed.), 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 Bose 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, 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 airy error calling for a reversal-, the judgment should be affirmed, with costs.

Scott and O’Gorman, JJ., concur.

Judgment affirmed, with costs.