Opinion
July 2, 1926.
Appeal from Supreme Court of Albany County.
James A. Quinn, for the appellant.
Harry W. Williams, for the respondent.
The action was brought to recover for money deposited with the defendant by the plaintiff as wagers or bets on horse races, between January 10, 1922, and November 24, 1923, under section 994 of the Penal Law, which provides as follows: "Any person who shall pay, deliver or deposit any money, property or thing in action, upon the event of any wager or bet prohibited, may sue for and recover the same of the winner or person to whom the same shall be paid or delivered, and of the stakeholder or other person in whose hands shall be deposited any such wager, bet or stake, or any part thereof, whether the same shall have been paid over by such stakeholder or not, and whether any such wager be lost or not." There was no exception to the charge and no requests to charge made by either party. Testimony was offered tending to show that the plaintiff deposited with the defendant as wagers or bets upon the event of horse races moneys aggregating a sum larger than the amount for which the jury found a verdict.
The appellant claims that some of the items were barred by the Statute of Limitations. This action is not to recover a penalty. The provision of the statute is remedial and not penal and the action is for money had and received. ( Mendoza v. Levy, 98 App. Div. 326.) The three-year Statute of Limitations (Civ. Prac. Act, § 49), therefore, does not apply and all the moneys were deposited within six years before the beginning of the action. (Civ. Prac. Act, § 48.)
Defendant complains that a paper called a bill of particulars was erroneously excluded. This paper was said to have been verified as a bill of particulars in a former action for a like cause and between the parties to this action. No exception was taken to any ruling of the court in respect to this paper. It did not appear that the paper contained any admission by plaintiff which would have been helpful to defendant on the trial, nor was there any testimony by plaintiff in regard to the paper or its contents which anything in the paper would contradict. If there was any error in ruling as to the admission in evidence of this paper, we think that the defendant was not prejudiced and that we are not called upon to rule thereon.
The judgment and order should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.