Medical World Publishing Co. v. Kaufman

29 A.D.2d 859, 288 N.Y.S.2d 548, 1968 N.Y. App. Div. LEXIS 4370

Opinion

Judgment dismissing the complaint, unanimously reversed, on the law, and the matter remanded in the exercise of discretion to the Trial Justice for the purpose of reopening the ease and the taking of such other testimony or proof as the parties may desire to offer, and upon the close of the entire case to make findings of fact and conclusions of law, and to declare the rights of the parties as of the time of the conclusion of the trial, with $50 costs and disbursements to abide the event. This being an action for a declaratory judgment, the rights of the parties should have been declared. The mere dismissal of the complaint is not an affirmative declaration of the parties’ rights. (See Skyway Container Corp. v. Castagna, 27 A D 2d 542; Levy v. Westchester County, 29 A D 2d 664.) Moreover, a declaration of their rights being required, in the circumstances it should be done only after defendant rests, and the case finally submitted. Concur — Eager, J. P., Capozzoli, MeGivem, Rabin and McNally, JJ.