Darraugh v. Carrington

270 A.D. 932, 62 N.Y.S.2d 241

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 1946
• Status: Published

Opinion

Per Curiam.

The declaratory judgment procedure sanctioned by the California law appears to be salutary for the purpose of determining in one action the various claims asserted in several derivative stockholders’ actions. For the procedure to be availing, however, there would have to be a trial of the issues raised in any action to be determined thereby, or at least an unequivocal calling upon the plaintiff in such action to introduce evidence in support of his claims. ■We do not find that the plaintiffs in the present action were thus called upon in the California action, or that the evidence which appellants cite as submitting the present causes of action was either responsive thereto or taken as presenting the issues. Under the circumstances, the judgment of the California court cannot be taken as an adjudication of the present action.

The order appealed from should be affirmed, with $20 costs and disbursements.

Martin, P. J., Townley, Glennon, Callahan and Peck, JJ., concur.

Order unanimously affirmed, with $20 costs and disbursements to the plaintiffs-respondents. [See post, p. 1014.]