In this action to recover (Laws of 1895, chap. 570, § 17), money lost by the plaintiff in a bet with the defendant Torpie on the horse “ Squid ” running unplaced on the defendant racing association’s track at Morris Park, in this city, the complaint was justifiably dismissed as to the racing association for failure to prove any bet made or recorded directly or indirectly with the association.
Contrariwise the learned justice might without much murmur have directed a verdict against Torpie as it was soon proven, and after a little skirmishing conceded, that Moulton bet with him on “ Squid,” paid him the money and lost the bet, and there was really no evidence upon which to hang a verdict for any one else in any action. Under- the decision in Ruckman v. Pitcher, 20 N. Y. 1, it was charged that the bet was made as a representative of Peter De Lacy; then the action should have been brought by Peter De Lacy. True enough, in Ruckman v. Pitcher it appeared, however, that of $3,000 deposited by the plaintiff various parties whom *490the plaintiff had admitted to an interest in the match had contributed $2,400, and that to complete the stake he had furnished $600 for which latter, as the real party in interest, he had a verdict sustained all through. The suggestion that the real party in interest herein was one De Lacy and not the plaintiff was the sole excuse for submitting this cause to the jury. That was not proven. The interest requisite to the maintenance of an action is not sympathy or malice, not sentiment or desire, not pleasure in seeing the plaintiff recover or hope that recovery will embarrass the defendant or even advantage the person claimed to be the real party in interest, but such a relation to 'the demand and its recovery that upon judgment and consequent payment the' cause of action will be barred. Nothing in the evidence would authorize a recovery by De Lacy. Everything said by De Lacy and Moulton contradicts a right to such a recovery. Testimony taken in court must be taken to mean something. Both Moulton and De Lacy said the former borrowed money from the latter. Moulton said the money bet on “ Squid ” was part of the money so borrowed. This left Moulton the owner of the demand and the only one to bring the action. No one could prove the contrary without the evidence of one or both, and both swore it was Moulton’s money. Upon Moulton’s recovery and subsequent reception by him of its payment from the judgment debtor or on his behalf, all right and cause of action arising against the defendant out of the transaction would be barred.
Furthermore it was charged in various forms, finally reduced to this, that if the plaintiff went there for the premeditated purpose of making a bet and bringing an action in case he lost, he could not recover. This was error. It was charged upon a contention inherently voiced upon the argument and voluminously expanded in the brief that a person may not join in the commission of a wrong, suffer and then claim compensation from him whom he has misled. The value of the money gotten by the winner being forfeit, the winner acquired no title to it, and for its recovery the loser is given a remedy by action as plainly in the section of the statute cited as if it were laid down in the Code of Civil Procedure. *491This obviates application of the maxim in pari delicto portior est conditio possidentis.
Moreover the Legislature, in its wisdom, has appointed forfeiture of money wagered, with a recovery in a civil action, the sole sanction for the prohibition in a new Constitution (art. 1, § 9) of gambling of this sort, by the declaring, in the same section of the statute cited, that upon racetracks under the auspices, as is this, of the State Racing Commission, this penalty (forfeiture of wagers won) is exclusive of all other penalties prescribed by law for the acts specified, so that on such tracks, and on such only, the operation of section 352 of the Penal Code is suspended, and betting on horse racing is not, as elsewhere throughout the State, a public nuisance and a crime, i. e., a wrong which the State notices as injurious to the public and punishes in what is called a criminal proceeding in its own name. Such a segregation of practices called in their recognition contrary to good morals is novel though not wholly new in this country.
It has been tried and abandoned in one State of the Union, and is said to be in vogue in the orient and elsewhere abroad as to a less namable occupation.
Whether such partial and limited suspension of a general law of the State be legitimate legislation within the province of a free government, which is “ to govern by promulgated, established laws, not to be varied in particular cases, blit to have one rule for rich and poor, for the favored at court and the countryman at the plow,” need not be here considered. The errors already pointed out suffice for the reversal of the judgment as to defendant Torpie.
Judgment reversed as to defendant Torpie and a new trial ordered, with costs to appellant to abide the event, but affirmed as to defendant racing association, with costs.
Gildebsleeve and MaoLeae, JJ., concur.
Judgment reversed as to defendant Torpie and new trial ordered, with costs to appellant to abide event, but affirmed as to defendant racing association, with costs.