Bach v. Grabfelder

233 A.D. 860

Opinion

Motion for reargument granted. Present — Lazansky, P. J., Kapper, Seudder, Tompkins and Davis, JJ. On reargument the decision of this court handed down on May 28, 1931, is hereby amended to read as follows: Judgment modified by adding, after the words “ hereby is dismissed,” the words “ without prejudice,” and as so modified unanimously affirmed, with costs to respondent. If we were to limit the non-enforeibility of the restrictions as against the defendant alone it would not be decisive of the situation disclosed by this record. Whether the restrictions upon plaintiff’s property can be enforced by owners of other lots in the tract in question should not be determined in an action seeking a judgment declaratory against such other owners in their absence. They have a right to be heard on the question of the enforcibility of the restrictions. Jurisdiction in an action for a declaratory judgment is discretionary. (Bareham v. City of Rochester, 246 N. Y. 140, 143.) A consideration of the facts presented satisfies us that the conclusion reached by the Special Term should be upheld. Present — Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ.