Cinerama, Inc. v. Equitable Life Assurance Society

38 A.D.2d 698, 328 N.Y.S.2d 160, 1972 N.Y. App. Div. LEXIS 5513

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1972
• Status: Published

Opinion

Order, Supreme Court, New York County, entered on August 4, 1971, and judgment of said court, entered on September 16,1971, unanimously modified, on the law, to delete dismissal of the complaint and to declare in favor of defendant, and as so modified, affirmed. Respondent shall recover of appellant one bill of $50 costs and disbursements of these appeals. Appeal from order, Supreme Court, New York County, entered on January 12, 1971, unanimously dismissed, without costs and without disbursements. We agree with the conclusions reached by the court at Special Term. However, in an action for a declaratory judgment the complaint should not be dismissed if a proper ease is made out for a declaration of rights. This is so even where the indicated disposition is, as here, a declaration in favor of the defendant. No appeal from an interlocutory order lies after final judgment unless the order affects the judgment. An application for an injunction pendente lite does not affect the final judgment (Bramley v. Miller, 243 App. Div. 220). Concur — Nunez, J. P., Kupferman, Murphy, Steuer and Tilzer, JJ.