The action is under section 994 of the Penal Law to recover money paid by plaintiff to defendant upon the event of prohibited wagers or bets. Plaintiff proved conclusively that on divers dates and occasions from April 28, 1928, to April 17, 1930, he had paid defendant, a bookmaker, various sums of money aggregating $37,535 for wagers lost upon a series of horse races. The defendant adduced evidence which, it may be assumed, warranted a finding that during the same period defendant lost and paid to plaintiff like wagers aggregating a much larger sum. It was the contention of the defendant, under a pleaded counterclaim, that he was entitled to recover from the plaintiff a sum equal to the excess of the total amount lost and paid by him to the plaintiff over the total amount lost and paid by the plaintiff to him. That contention, accepted by the trial court, was rejected by the Appellate Division. Plaintiff was granted judgment for the entire amount of the wagers lost and paid by him to the defendant. As matter of law, the judgment was right.
Under the evidence and for the purpose of this case, plaintiff must be regarded as a casual, and the defendant as a professional gambler. "The statute against betting and gaming was enacted as a protection of the public morals. The intention of the legislature was to discourage and repress gambling in all its forms, and the law * * * is to be construed so as to accomplish, so far aspossible, the suppression of the mischief against *Page 82 which it was directed." (Luetchford v. Lord, 132 N.Y. 465,469, citing Ruckman v. Pitcher, 1 N.Y. 392, 396, and Storey v. Brennan, 15 N.Y. 524, 527.) But casual betting or gaming by individuals as distinguished from betting or gambling as a business or profession, is not a crime. (People v. Stedeker,175 N.Y. 57; People v. Bright, 203 N.Y. 73; People ex rel.Collins v. McLaughlin, 128 App. Div. 599.) The distinction between the two species has long "obtained in this state where ordinary betting has never been made a crime * * * while the keeping of a gambling house, selling lottery tickets and the profession of a common gambler have been subjected to severe punishment." (People v. Stedeker, supra, p. 62.) Discouragement of casual betting has never gone beyond the point of making recovery by a winner impossible upon default by the loser (Penal Law, §§ 991 and 992); and of compelling return to the loser of voluntary payments made by him. (Penal Law, §§ 994 and 995.) Attack or defense in a civil action has been regarded as adequate — "as one of the best and surest means" (Ruckman v.Pitcher, supra, p. 405) — for the suppression of that kind of betting. The evil which the law chiefly condemns (N.Y. Const. art. I, § 9) and makes criminal (Penal Law, art. 88) is betting and gambling organized and carried on as a systematic business. The reason seems obvious. Curb the professional with his constant offer of temptation coupled with ready opportunity, and you have to a large extent controlled the evil.
It is clear that in the eye of the law the professional gambler and his customer do not stand on the same plane. They are not inpari delicto.
To argue, therefore, that the Legislature, by using the phrase "any person" in section 994 of the Penal Law, intended to confer a right upon the professional to recover his losses from his customer, is unconvincing. Under such a construction, a criminal act would give rise to a cause of action. That cannot be the law. (Cf. Riggs *Page 83 v. Palmer, 115 N.Y. 506; Murray v. Interurban Street Ry.Co., 118 App. Div. 35.) By no possibility could such a construction tend, as we have said it should, to "the suppression of the mischief against which it [the statute] is directed."
But it is urged that in any event the defendant, a professional specializing in the field of bookmaking, may offset his losses against the plaintiff's claim. How may that be, if he has no cause of action at all? To permit it would be to permit protanto what the law denies in toto. Nowhere in the statute is there any indication of an intent to afford a locuspoenitentiae to the professional. Quite the contrary. Whatever his shape may be, he is an outlaw. Moreover it is to be remembered that the right of recovery given by statute to the casual gamester is not intended to benefit him, but to put teeth in the prohibition against all betting.
As a precedent for the theory of offset, however, there is pressed to our attention the case of Elias Shepherd v. Gill (92 Ky. 569). The compromise involved in that decision is a sporting one, and on that ground admirable. We think it can be sustained on no other, and prefer to follow Lyons v. Coe (177 Mass. 382), which dealt with an analogous, if less ambiguous, statute.
The judgment should be affirmed, with costs.