HANDBOOK OF THE TURF. 147 



is made by one who is not present, and therefore not liable to 

 cross-examination. If the same author were cross-examined, 

 and called to state the grounds of his opinion, he might, him- 

 self, alter or modify it, and it would be tested by a comparison 

 with the opinions of others. Moreover, the range of subjects 

 in the veterinaiy art are not open to persons of common expe- 

 rience, hence they are not qualified to judge regarding them, 

 and it is not competent for counsel to use them in argument 

 against the objection of the other side. 



In the New York Supreme Court, Justice Gay nor, of 

 Brooklyn, rendered an opinion. May 28, 1894, that horse rac- 

 ing is not a lottery. Tlie opinion was given in the case of 

 Philip Dwyer, President of the Brooklyn Jockey Club, accused 

 of "contriving, proposing and maintaining a lottery." Acting 

 for the association, of which he was president, the defendant 

 advertised and organized a horse race to be run May 15, 1894. 

 The race was to be open to all thoroughbred horses three years 

 old and upwards, which horses, in order to run, had to be duly 

 entered on the books of the association. An entry fee of $250 

 was charged, part of which was to be remitted in the case of 

 horses withdrawn before the race. The race was to be for a 

 stake of $25,000, of which $18,000 was to go to the winner, 

 $5,000 to the second horse, and $2,000 to the third horse. 

 The stake was to be made up by the association adding to the 

 total of the entry moneys a sufficient sum for that purpose. 

 This is what the complainant calls a lottery ; and in rendering 

 his opinion. Justice Gaynor said: "There is no foundation 

 for his contention. It is not a lottery, either in common 

 speech or within legal definition. A lottery depends on lot or 

 chance, such as the casting of lots, the throwing of dice or the 

 turning of a wheel. Human intelligence, judgment or skill 

 plays no part in the determination of the result. In the 

 scheme of this race, horse owners do not pay a sum to win a 

 larger sum by lot or chance, but in order to enter into the 

 contest of skill, endurance and speed upon which the stake 

 depends, in which intelligence, sagacity and good judgment 

 play a very important part in the determination of the result." 

 Racing horses for stakes was made penal by the New York 

 statute of 1802, and the same provision, coming from the 

 beginning down the distinct lines of legislation, known as 

 "Lotteries" and "Gaming," is now found in Section 352 of 

 the Penal Code, which, in so many words, makes all racing or 

 trials of speed between horses or other animals for any bet, 

 stake or reward, a misdemeanor; and it indisj)utably covers 

 the facts of this case, viz. : The racing of horses for contrib- 

 uted stakes. But by Chapter 479 of the laws of 1887 the 



