seems to me, is nothing more than an engagement between individuals that resulted in their making of a wager upon a horse race, which, of itself, is not illegal, because this statute is aimed at the offense of bookmaking as defined in said decision.

I will now take up the second and third counts of the indictment, charging these defendants with the crime of recording and registering bets and wagers upon the result of trials and contests of skill, speed and power of endurance of horses. It was decided in the case of People v. Lanibrix, 204 N. Y., 261, at page 264, that the mere receipt of the memorandum by the defendant did not constitute this offense. In the course of the opinion in that case Judge Cullen said, however, "To bring the case within the statute it was not necessary that the defendant personally should make the record or registry of the wager. If it was made by any persons in his employ or on his behalf or by his direction, that would be sufficient to charge him."

It is sought to hold these defendants upon that part of the evidence in this case in which it is shown that these defendants handed slips to the witnesses and told them to put on them the name of the horse, the price and their initials, in other words it is claimed that the defendants constituted the complaining witnesses in this case, with whom they had the transactions, their agents, and that they were acting in the matter through them, but it would seem to me an undue extension of the theory of agency, especially as applied to a criminal case, to hold that these men were acting for and on behalf of these defendants.

The complaining witnesses were acting for themselves; they wanted to make a bet; they said they wanted to make a bet and thereupon these defendants handed them slips of paper and told them to make these memorandums. Now in order to make the bet it was necessary for these witnesses to write these memorandums evidently, and if they had not done so they could not have made the bet; so to accomplish their purpose they willingly of their own accord and for their own purposes made a memorandum and handed it to the defendant. There was no evidence in this case that these defendants had clerks or assistants or persons whom they had specially employed for the purpose of acting for

them in making memorandums, or even that they engaged anybody to take memorandums, without gain, voluntarily, for them.

I am of the opinion, therefore, that the second and third counts of the indictment have not been sustained by such evidence as would justify the submission of this case to the jury; therefore, the Court advises the jury in this case to acquit the defendants of the charges made against them in the first, second and third counts of this indictment.

No. 46

IN SENATE

APRIL 15, 1916

REPORT OF THE SPECIAL COMMITTEE ON APPORTIONMENT

To the Legislature:

The Committee on Apportionment respectfully makes the following report and explanation of the Apportionment bill which it presents:

In undertaking the Apportionment of Senate districts the first question arising was the number of such districts pursuant to Section 4, Article 3 of the Constitution which provides:

"the senate shall always be composed of fifty members except that if any county having three or more senators at the time of any apportionment shall be entitled on such ratio to an additional senator or senators, such additional senator or senators shall be given to such county in addition to fifty senators, and the whole number of senators shall be increased to that extent."

Under the Apportionment made by the Constitutional Convention in 1894, Kings county had seven senators.

Under the Apportionment in 1907, based upon the enumeration of 1905, Kings county was entitled to eight senators, while the