Kennedy v. Doyle

229 A.D. 756

Opinion

Per Curiam.

We are of the opinion that upon the record before us the justice at Special Term was justified in the exercise of his discretion in denying a declaratory judgment with injunctive relief in favor of the plaintiff and in dismissing her complaint. However, certain findings and conclusions are, in our opinion, not substantiated by the evidence and if permitted to stand would be prejudicial to the plaintiff and would foreclose her from proper relief in some other form of action. The judgment, therefore, will be affirmed, without costs, but findings of fact numbered 5th, 6th, 7th, 8th, 9th, 10th, 12th, 13th, 14th, 15th, 16th, 21st and 22nd, and conclusions of law numbered II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII and XIV will be reversed. Present — Dowling, P. J., Finch, McAvoy, Martin, and O’Malley, JJ. Judgment affirmed, without costs. Findings of fact and conclusions of law reversed as noted in opinion.