Conford, J.A.D. (temporarily assigned).
[43 NJSuper Page 129] The three above-captioned causes came on for hearing and were consolidated for trial by consent as involving common questions of law and fact. In each the plaintiff is the commercial operator of a game conducted in a shore resort community and charges that the defendant law enforcement officials visited its premises in the summer of 1956, informed it that
its business was in violation of law, and threatened arrest of the managing personnel and closure of the enterprise if it did not desist in the operation. Plaintiffs complain that their businesses are not in violation of law and that the threats of defendants if carried out will cause them great and irreparable damage. They seek permanent injunctions against any further interference by the defendants. See S. & R. Amusement Corp. v. Quinn , 136 N.J. Eq. 420 (Ch. 1944).
A single factual issue was tried at the hearing -- whether, and the extent to which the games involved are games of chance, rather than of skill, in violation of N.J.S. 2 A:112-3, which punishes as a misdemeanor the keeping of "a place to which persons may resort * * * for gambling in any form." The defendants maintain that the operations of plaintiffs are unlawful for the additional reasons that they violate N.J.S. 2 A:112-1, prohibiting the "playing for money" with "tables," and that, because any kind of wagering or betting for stakes upon an unknown or contingent event is unlawful, under N.J.S. 2 A:40-1, the maintenance of these establishments is a criminal nuisance, regardless of the matter of the skill of the player at the games, under N.J.S. 2 A:130-2; 2 A:130-3 (see State v. Western Union Telegraph Co. , 12 N.J. 468, 490 (1953), approving the definition of gambling as "the act of risking or staking anything on an uncertain event"), as well as the keeping of a disorderly house at common law, State v. Berman , 120 N.J.L. 381, 382 (Sup. Ct. 1938). For purposes of the determination of the present matter, however, it will suffice to consider whether plaintiffs have succeeded in their effort to prove the contention posed by the pretrial orders that these games consist "entirely of skill and dexterity and that the element of chance is altogether absent therefrom," or, alternatively, that "the dominant factor is skill, not chance."
The game involved in the Ruben and Skill Amusement Co. cases is known as "Fascination"; in the other case it is "Pitch Fascination." The fundamental principles of these games are similar; only in mechanics of operation do they
differ. In Fascination there are individual play devices for each of a maximum of 52 players playing simultaneously. The player rolls a small rubber ball along a table on a gradient plane at the end of which there is a square arrangement of 25 holes consisting of five vertical and five horizontal rows of holes. After propulsion, the ball rolls back to the player for the next play. As a ball enters a hole an electrical device lights up the location on a reproduction of the playing grid set up on a vertical backboard of the device. Between the player and the holes is placed a plastic barrier which the ball must surmount before reaching the hole area. The ball is about 1-3/16 inches in diameter; the hole about 3/16 inches wider. The first player who lights up an entire 5-hole row, either vertically, horizontally, or diagonally, is the winner, and, for his ten-cents playing fee, receives $1; if he "makes" the bottom row, the prize is $5; if the second horizontal row, $2. The other players lose their dimes to the house. About 30 games are played each hour. On an average busy evening more than half the playing places will be occupied at any given time.
In "Pitch Fascination" there is a similar 25-hole grid, but enclosed by glass partitions on four sides, and the balls are thrown by the player into the enclosure, each player simultaneously throwing one ball. In addition to the winning combinations as in Fascination, supra , there is a win also if the four corner holes, or the four center holes in each outside row, are filled. In this game the fee is also ten cents, but the amount of the prize is determined by the operator and announced at the outset of the game. It varies from $.50 to $2, depending upon the number of players. A special prize of $5 is awarded for a "perfect" diagonal row (on five thrown balls). There are generally no more than 25 players at a time, although on occasion there have been as many as 45.
In the case of all three plaintiffs it was established by the proofs that the sole income of the venture is constituted by the fees of contestants and that from the gross revenues so realized are paid normal business expenses such as rent,
payroll, taxes, insurance, supplies, etc. , the remainder going to prizes, and, presumably, operator's profit.
The plaintiffs' case was rested substantially upon the expert testimony of Dr. Harold William Kuhn, Professor of Mathematics at Bryn Mawr College, a scholar and writer on the theory of probability as applied to the special field of the theory of games. He conducted several series of test games in both Fascination and Pitch Fascination between four selected players, two experts and two novices. The details of the proofs and of the elaborate documentary supporting exhibits need not be recounted at length. In the Pitch Fascination tests the experts won 54 games out of 75 played and in Fascination they won 31 out of 44. Moreover, in other experiments, the novices won more games than the experts when the latter were blindfolded. Dr. Kuhn's conclusions were that "the division of games between experts and novices, under normal conditions, is not determined primarily by chance. The experts are significantly better than the novices"; also, that "the visual control of the ball has a significant influence upon the outcome of a contest." Primarily upon this kind of proof plaintiffs erect their major argument that the significance of chance in these games is so slight as to take them out of the "gambling" category, within the test laid down in the leading case of State v. Ricciardi , 18 N.J. 441, 445 (1955), and reaffirmed in State v. Schneiderman , 20 N.J. 422, 427 (1956):
"The principle is settled that in determining the presence of gambling in a particular operation or form of activity, the criterion is not whether the element of skill is present to some degree but whether it or chance ...