Freechas Realty Co. v. Hall

259 A.D. 1022, 1940 N.Y. App. Div. LEXIS 7803

Opinion

Order, in so far as appealed from, denying motion of the plaintiff to strike out as insufficient two affirmative defenses contained in the answer, affirmed, with ten dollars costs and disbursements. On its face, it appears that the complaint is defective in that a declaratory judgment is sought although the same issue is pending in a proceeding before another court, which presumably has jurisdiction of the subject-matter of the assignment. If for any reason the issue may not or cannot be determined in the Orphans’ Court for the City and County of Philadelphia, Pennsylvania, appropriate allegations to that effect should have been set forth affirmatively in the complaint. There are no such allegations. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.