Messina v. City of Batavia

Appellate Division of the Supreme Court of New York

Messina v. City of Batavia

38 A.D.2d 678, 327 N.Y.S.2d 266, 1971 N.Y. App. Div. LEXIS 2773

Appellate Division of the Supreme Court of the State of New York·Decided December 9, 1971·Published·Cited by 1 cases

Opinion

Order and judgment unanimously modified accordance with the memorandum and as modified affirmed, without costs. Memorandum: Since the action is one for declaratory judgment the court should have declared the validity of the resolutions of March 9, 1970 and June 29, 1970 instead of dismissing the amended complaint (see Lanza v. Wagner, 11 N Y 2d 317, 334; Town of Pittsford v. Gallea, 25 A D 2d 479, affd. 18 N Y 2d 920; 24 Carmody-Wait 2d, New York Practice, § 147:37). (Appeal from judgment and order of Erie Special Term dismissing complaint [679] in declaratory judgment action.) Present — Del Vecchio, J. P., Witmer, Gabrielli, Cardamone and Henry, JJ.

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Order and judgment unanimously modified accordance with the memorandum and as modified affirmed, without costs. Memorandum: Since the action is one for declaratory judgment the court should have declared the validity of the resolutions of March 9, 1970 and June 29, 1970 instead of dismissing the amended complaint (see Lanza v. Wagner, 11 N Y 2d 317, 334; Town of Pittsford v. Gallea, 25 A D 2d 479, affd. 18 N Y 2d 920; 24 Carmody-Wait 2d, New York Practice, § 147:37). (Appeal from judgment and order of Erie Special Term dismissing complaint [679] in declaratory judgment action.) Present — Del Vecchio, J. P., Witmer, Gabrielli, Cardamone and Henry, JJ.

Messina v. City of Batavia, 38 A.D.2d 678, 327 N.Y.S.2d 266, 1971 N.Y. App. Div. LEXIS 2773 (N.Y. Ct. App. 1971).

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Opinion

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