
    Henry C. Judson, Appellant, v. The Flushing Jockey Club, Respondent.
    (New York Common Pleas
    General Term,
    November, 1895.)
    Where it appears at any stage of an action, in any manner, that the action is not a genuine litigation over a contested right between opposing parties, but is merely the proffer of a simulated issue by a person dominating both sides of the record, the court will decline to determine it.
    Statements by reputable members of the bar, although theyxdo not appear for parties to the record, that the action is a false and fictitious litigation are sufficient to authorize a postponement of the decision until the court is satisfied that the action is a legitimate one.
    A reference may properly be ordered to determine that fact.1
    
      Appeal from judgment of a District Court.
    Action for a sweepstake won on a horse race,
    
      J. M. Marx, for appellant.
    
      Bevij. Steinhardt, for respondent.
    
      Joseph T. Auerbach, Charles J. Patterson and .Pelancey Hicoll, .intervening: for the .State ¡Racing Commission, the Jockey Club, the Coney Island Jockey Club and the Westchester ¡Racing Association.
   Per Curiam.

When, on the call of the calendar, counsel for the ostensible parties to the cause answered ready, gentlemen of the bar, on behalf of interests not apparent upon the record but involved in the decision, interposed an objection to the argument of the appeal, upon the allegation that the action is a fictitious litigation, contrived and presented to procure an adjudication of a question not actually in controversy between real contestants, but framed and. propounded ’ by a person who, in fact, is at once plaintiff and defendant. And the issue which, according to the statement, is so sought to be determined is of the utmost gravity, namely, whether a statute of the state, passed with all the solemnities of regular leg-, islative procedure, be a constitutional enactment. Demarest v. Mayor, 147 N. Y. 203.

Courts of judicature are organized only to decide real Controversies between actual litigants. When, therefore, it -appears, no matter how nor at what stage, that a pretended action is not a genuine litigation over a contested right .between ■opposing parties, but is merely the proffer of a simulated issue by a person dominating both sides of the record, the court, from a sense of its own dignity as well as from regard to the public interests, will decline.a determination of the fabricated •case so fraudulently imposed upon it. Lord v. Veazie, 8 How. (U. S.) 255 ; Cleveland v. Chamberlin, 1 Black (U. S.), 426; Wood Paper Co. v. Heft, 8 Wall. (U. S.) 333 ; Bartemeyer v. Iowa, 18 id. 134, 135 ; San Mateo v. R. R. Co., 116 U. S. 138; Washington Market Co. v. District of Columbia, 137 id. 62; South, etc., Co. v. Amador, etc., Mining Co., 145 id. 300; Singer Manf. Co. v. Wright, 141 id. 696, 700; California v. San Pablo, etc., R. R. Co., 149 id. 308, 314; Hoskins v. Lord Berkeley, 3 T. R. 402; In the Matter of Elsam, 3 B. & Cress. 597; Wood v. Nesbit 47 N. Y. St. Repr. 34..

If we may not accept the assurance or reputable "members of the bar as proof that the action is a false and fictitious litigation, their statement suffices, at all events, for a postponement of the decision until, the court shall be satisfied that it .has to do with a legitimate forensic discussion. According to the precedents we may. so ascertain either by the record, by affidavits or by a reference. The last-named expedient we adopt as the more effective method of investigation.

Present: Daly, Ch. L, Bookstaveb and Pbyob, JJ.

Reference ordered.  