Opinion
March 29, 1956
Appeal from the Supreme Court, New York County.
Essentially, what plaintiffs are seeking by this declaratory judgment action is a determination as to the legality of a contract made between plaintiff Standardbred and defendant Yonkers Raceway, Inc. It is urged that such a ruling is necessary because the defendant commissioner in a prior disciplinary proceeding against the individual plaintiffs made a finding that a waiver provision in the contract referred to, could not supersede the Rules and Regulations of the New York State Harness Commission or the United States Trotting Association. On a review of the commissioner's action in suspending the individual plaintiffs as the result of the disciplinary proceeding, both this court and the Court of Appeals have affirmed. ( Matter of Dougherty v. State Harness Racing Comm., 286 App. Div. 837, affd. 309 N.Y. 992.) Thus, insofar as the individual plaintiffs are concerned, any controversy involving them in connection with that matter has been finally resolved. As to plaintiff Standardbred (not a party to the disciplinary proceeding) the most that can be said is that it is asking this court to render a legal opinion as to its rights under the contract with Yonkers Raceway. However, there does not appear to be any actual controversy presently existing between these parties nor does the complaint so allege. In the absence of such controversy the court will not entertain jurisdiction for the purpose of rendering a declaratory judgment ( Leonard v. John Hancock Life Ins. Co., 281 App. Div. 859).
The orders should be reversed, with $20 costs and disbursements, and complaint dismissed.
Breitel, J.P., Botein, Rabin, Cox and Bergan, JJ., concur.
Orders unanimously reversed, with $20 costs and disbursements to the appellants, the motions to dismiss the complaint granted and judgment is directed to be entered in favor of the defendants dismissing the complaint herein, with costs.