Frishon Realty Corp. v. Stern

261 A.D. 990, 27 N.Y.S.2d 440, 1941 N.Y. App. Div. LEXIS 8467

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 1941
• Status: Published

Opinion

In an action for a declaratory judgment, defendants appeal from an order which granted reargument and on reargument annulled a prior order and denied defendants’ motion to dismiss the second cause of action set forth in the' complaint. Order on reargumont, in so far as appealed from, reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted to the extent of striking out the second cause of action, without costs, with leave to plaintiff to serve an amended complaint -within ten days from the entry of the order hereon. In the exercise of sound discretion the action for a declaratory judgment should not be entertained on the facts here invoked. The plaintiff should seek its remedy on the same facts and proof in a direct action for damages, as all the rights in favor of the plaintiff against defendants have accrued. Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.