Opinion
December, 1895.
J.M. Marx, for appellant.
Benj. Steinhardt, for respondent.
Joseph T. Auerbach, Charles J. Patterson and Delancey Nicoll, intervening for the State Racing Commission, the Jockey Club, the Coney Island Jockey Club and the Westchester Racing Association.
The report of the referee shows that the controversy before the court was fictitious; that the transaction out of which it was supposed to grow, a horse race for stakes, was a pretended contest arranged so as to form the basis of suits at law in which, without real adversaries before the court, an adjudication might be procured to use for other purposes than the enforcement of the right involved in the pretended suits.
Upon the intervention of third parties having interests that might be affected by a decision in those proceedings, we ordered a reference to ascertain the facts, and the report of the referee bearing out the contention of such parties, it only remains for us to dismiss the proceedings in this court growing out of the pretended and collusive transactions referred to. In addition to the cases already cited by us on the question of the right of third parties to intervene, we refer to the case of Haley v. Eureka County Bank in the Supreme Court of Nevada on March 10, 1891, reported in 12 Lawyers' Reports, Annotated, 815, with note, in which it was held that an attorney as amicus curiæ may move to dismiss an action as collusive, and it is his duty to do so if he knows, or has reason to believe, that the action is fictitious.
We shall, therefore, enter an order dismissing the appeal from the District Court in the case of Judson v. Flushing Jockey Club and the appeal and the action in this court in Dudley v. Flushing Jockey Club, and direct that the opinions of this court in those cases be withdrawn from the files, and that the costs of the reference be paid by the parties to those appeals.
BOOKSTAVER, BISCHOFF, PRYOR and GIEGERICH, JJ., concur.
Appeals dismissed.