N. Y. Rep.] Opinion of the Court, per CHASE, J. commencement of such a proceeding. This court has held that to prohibit the allowance to the owner of land taken for a street, of any amount for a building erected or placed thereon. after the filing of a map of the street as prescribed by a municipal charter, imposes a restriction upon the use of land which amounts to an incumbrance and so is unconstitutional. (Forster v. Scott, 136 N. Y. 577.) When the property is taken the compensation should be just to the owner, but it should also be just to the public. Good faith should be exercised by all parties affected by the enforced intervening time during the pendency of the proceeding. (Lewis on Eminent Domain, sec. 663; Matter of Opening of Rogers Avenue, 29 Abb. [N. C.] 361; Sherwood v. St. Paul & Chicago R. Co., 21 Minn. 122.) Some owners of real property in our large cities where street opening and other condemnation proceedings are of frequent occurrence, in undue reliance upon assumed constitutional rights, have so planned by the frequent moving of buildings upon lands successively sought to be condemned that they have enhanced and doubled up the aggregate damages to be paid by the municipality until it constitutes an evil which deserves condemnation. The legislature has repeatedly attempted to make it impossible to use one building as a means of improving successive pieces of property, thus enhancing the damages. The business referred to has become popularly known as "house planting." The conceded facts in this case justify the statement of the respondent that the appellant has acted in bad faith in connection with placing the building on the land sought to be condemned. The building so placed upon such land had been severed from the soil where it was originally erected. It had by such severance become personal property. Where a building which has thus become personal property is moved by the owner of lands sought to be condemned, and placed upon such lands in bad faith and not in the natural, ordinary and legiti mate use of such real property, it should for the purposes of the proceeding retain its character as personal property. The municipality in this case does not seek to condemn the build ing except as it is a part of the real property necessary to be taken by it. As personal property the owner can remove it from the premises. Just compensation to the owner of the lands taken does not require that such building so moved upon such lands shall be used to enhance the damages to be paid to him. Such a building so planted should be treated as personal property and the damages awarded accordingly. The appellant should not complain of the award made to him by the commissioners. The order should be affirmed, with costs. CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT and HISCOCK, JJ., concur. Order affirmed. THE PEOPLE OF THE STATE OF NEW YORK ex rel. SOL LICHTENSTEIN, Respondent, v. JOSEPH LANGAN, a Lieutenant of Police. bookmaking - when information fails to allege acts constituting bookmaking. The vice of bookmaking chiefly consists in soliciting and in the inducing the public to take chances in the carefully figured and planned scheme of the bookmaker, and this, in order to be profitable to him, requires the writing out of the list of the odds laid on some paper or material so that they could be seen by those who were solicited to invest. An information charged the person arrested thereon with laying odds and publishing the same, but was not intended to, and did not, charge that such laying odds and publishing was by any writing or printed instrument, but that it was oral. Held, that such information did not allege acts which constitute the crime of bookmaking within the meaning of section 351 of the Penal Code (section 986, Penal Law, Consolidated Laws), which provides that any person who engages in bookmaking is guilty of a misdemeanor and prescribes the penalty therefor. People ex rel. Lichtenstein v. Langan, 132 App. Div. 937, affirmed. (Argued October 11, 1909; decided November 9, 1909.) APPEAL from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 7, 1909, which affirmed an order of Special Term sustaining a writ of habeas corpus and directing that the relator be released from custody. The facts, so far as material, are stated in the opinion of HAIGHT, J. John F. Clarke, District Attorney (Robert H. Elder of counsel), for appellant. Bookmaking is really the arrangement of odds by which the bettor who arranges the odds. seeks to do so in such a way as to stand a better chance of winning than those who bet with him, and the publication in any manner whatever of those odds for the purpose of getting bets. (Stornmouth's Dictionary; Century Dictionary; Standard Dictionary; Nelson's Ency.; Ency. Brittanica [9th ed.]; Rex v. Corrie, Watson's J. P. 294.) If the spirit of the constitutional provision against race course gambling and the purpose of the legislature in its re-enactment of section 351 of the Penal Code be given effect it must follow that the term "bookmaking" is used in a generic sense as including, broadly, all acts of gambling that have been heretofore incident to so-called bookmaking. (Const. of N. Y. art. 1, § 9.) Joseph S. Auerbach, John B. Stanchfield and Charles II. Tuttle for respondent. The claim of the district attorney that section 351 of the Penal Code renders criminal the mere act of betting is an attempt to obtain, by judicial decision, legislation which the legislature when passing the Hart-Agnew Law expressly rejected. (People v. Stedeker, 175 N. Y. 57; Johnson v. S. P. Cɔ., 196 U. S. 1; T. II. Dept. v. Maeschen, 179 N. Y. 325; State v. Kelly, 81 Pac. Rep. 450.) The criminal statutes of this state as to wagers remain as they were before the passage of the so-called Hart-Agnew billschapters 506 and 507 of the Laws of 1908 except that the provisions for an exclusive penalty for the recording of bets upon certain race courses have been repealed. The only effect of the new laws is to apply a uniform penalty to the recording and registry of bets wherever made. (People ex rel. Collins v. McLaughlin, 128 App. Div. 599.) Opinion of the Court, per HAIGHT, J. [Vol. 196. At common law betting was a matter of right, and a wager was a lawful and enforceable contract; and in New York this right has been curtailed in so far and only in so far as the statutes of the state expressly prohibit and punish it. No statute of this state-except in the case of bets upon prize fights— has ever made a crime of mere betting between individuals, or of the mere offering to bet at odds or even chances, whether in the form of a single or of several bets or offers to bet, though in certain cases such betting has been made subject to pecuniary mulets. As appears from a mere inspection of the criminal statutes of this state concerning gaming, sections 336 to 352 of the Penal Code, they are directed against the maintenance of houses or places set apart for the purpose of gambling and the paraphernalia with which it is conducted, and do not seek to punish by imprisonment mere betting or offering to bet, regardless of the frequency of such offers or of the ratio. proposed. (People v. Stedeker, 175 N. Y. 57; People ex rel. Collins v. McLaughlin, 128 App. Div. 599; People v. Todd, 51 Hun, 446; Lyman v. S. S. Club, 39 App. Div. 459; Powell v. K. P. R. C. Co., 66 L. J. N. S. [Q. B. Div.] 601; Morgan v. Groff, 4 Barb. 524; Bunn v. Riker, 4 Johns. 425; Campbell v. Richardson, 10 Johns. 406; May v. Burras, 13 Abb. [N. C.] 384; Eggers v. Klussman, 16 Abb. [N. C.] 226.) The information fails to set forth facts which would constitute the crime of engaging in bookmaking. (People ex rel. Sturgis v. Fallon, 152 N. Y. 1.) Without the making of some record there can be no bookmaking. (Murphy v. Bd. of Police, 11 Abb. [N. C.] 337; State v. Oldham, 200 Mo. 538; People v. Bennett, 113 Fed. Rep. 515; Spies v. Rosenstock, 87 Md. 14.) HAIGHT, J. The relator was arrested by virtue of a warrant, upon information filed by the district attorney with the Court of Special Sessions in the city of New York, in which information the relator was accused of the crime of engaging in bookmaking. The information charged that "The said Sol Lichtenstein, William Brown and Louis Mayer on the N. Y. Rep.] Opinion of the Court, per HAIGHT, J. 23d day of September, 1908, at the Borough of Brooklyn, of the City of New York, in the County of Kings, on the grounds of a private inclosure known as the racecourse of the Brooklyn Jockey Club, a domestic corporation, where certain trials and contests of skill, speed and power of endurance of horses, commonly called horse-races, were then and there conducted, did unlawfully, willfully and knowingly, to many persons, upon the results of said races and upon various and divers horses that were announced to participate and did participate in said races, quote and lay odds, that is to say, did state and publish to said persons the terms on which they, said Sol Lichtenstein, William Brown and Louis Mayer, were willing then and there to bet with said persons on said results and against said horses; and did then and there quote and lay odds, as aforesaid, of eight to five on one of said horses called Fitz Herbert, and did then and there accept a bet of fifty dollars from a person whose name to the district attorney is unknown, but who can be identified, on said horse at said odds, that is to say, bet eighty dollars against fifty dollars bet by said person, that said horse would lose, against the form of the statute in such case made and provided." Thereupon relator petitioned for a writ of habeas corpus in which he claimed that the information filed stated no offense under section 351 of the Penal Code. Upon the hearing at Special Term the writ was sustained and the relator was discharged from custody. * * Section 351 of the Penal Code, so far as is now material, provides as follows: "Any person who engages in * bookmaking at any time or place; or any person who keeps or occupies any room, shed, tenement, tent, booth, or building, float or vessel, or any part thereof, or who occupies any place or stand of any kind, upon any public or private grounds within this state, with books, papers, apparatus or paraphernalia, for the purpose of recording or registering bets or and any person who records or registers * * upon the result of any trial or contest of skill, speed or power of endurance, of man or beast, wagers, * * * * bets or wagers, |