Storer v. Ripley

283 A.D. 973, 131 N.Y.S.2d 93, 1954 N.Y. App. Div. LEXIS 5963

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 1954
• Status: Published

Opinion

— In an action for a judgment to declare void two notices requesting directors of a certain corporation to call special meetings of the stockholders, and for other relief, defendants appeal from two orders, one denying their motion to dismiss the complaint on the ground that there is another action pending between the same parties for the same cause, and the other granting plaintiff’s motion for an injunction pendente lite, restraining defendants from proceeding with respect to such notices. Order denying motion to dismiss complaint reversed on the law, with $10 costs and disbursements, and motion granted, with $10 costs. Order granting motion for an injunction pendente lite reversed, without costs, and motion dismissed, with $10 costs. Jurisdiction of an action for a declaratory judgment should not be entertained when “another action between the same parties, in which all issues could be determined, is actually pending at the time of the commencement ” of the action. (Woollard v. Schaffer Stores Co., 272 N. Y. 304, 311; see, also, Colson V. Pelgram, 259 N. Y. 370; Gilbert v. Village of Larchmont, 280 App. Div. 1000; Magnotta V. Parkway Fleetwood Bldg., 277 App. Div. 896, and Freechas Realty Co. v. Hall, 259 App. Div. 1022.) All the parties in this action are parties in the prior action, in which a declaratory judgment is sought concerning the same subject matter, the efficacy of the two notices. Adel, Acting P. J., Wenzel, MacCrate, Beldock and Murphy, JJ., concur.