Strauss v. University of State of New York

280 A.D. 1017, 116 N.Y.S.2d 763, 1952 N.Y. App. Div. LEXIS 4575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1952
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Albany County, granting a temporary injunction. The complaint pleads a cause of action for declaratory judgment between the plaintiffs, who are optometrists, and the defendants, constituting the Board of Regents, declaring invalid a regulation that a certain size and luminosity of advertising by optometrists is unprofessional conduct. The appeal is from an order of the Special Term which granted a temporary injunction against the enforcement of the regulation during the pendency of the action. Appellants ask that the complaint be dismissed on this appeal, but the record shows no such motion at Special Term. If there is a justiciable controversy between the parties, as there seems to be in this case under the authority of Finlay Straus, Inc., V. University of State of New York (266 App. Div. 1042, 270 App. Div. 1060), the complaint will not be dismissed on motion because a cause of action for a declaratory judgment exists, whether or not the declaration to be given is what the plaintiff asks for. (Rockland Light <& Power Co. v. City of New York, 289 N. Y. 45.) This does not necessarily mean there is a triable issue presented here or that the judgment to be given cannot be entered on appropriate motion. We do not pass on those questions because in our view they are not now before us. The single question here is whether the Special Term had before it a case in which it could properly exercise a discretion to grant a temporary injunction. It is our view that it had such a case (Finlay Straus, Inc., v. University of State of New York, 266 App. Div. 1042, supra). Order affirmed, with $10 costs and disbursements. Foster, P. J., Brewster, Bergan and Coon, JJ., concur; Heffernan, J., taking no part.