Wheeler v. Wheeler

192 Misc. 773, 81 N.Y.S.2d 805, 1948 N.Y. Misc. LEXIS 2960

Opinion

Stoddart, J.

Motion to dismiss the complaint granted. The complaint prays for a declaratory judgment and an injunction, but facts are not pleaded to sustain either form of relief.

The parties are husband and wife, presently living apart in the State of New York. There is no pending action for separation, divorce or annulment between them in this State, nor has any action been commenced in a foreign State, but allegedly the defendant has threatened to move to another State to seek. a divorce.

A declaratory judgment, while discretionary with the court, is dependent upon facts and circumstances rendering it useful and necessary. In Shapiro v. Nuliffe Garments Co. (270 App. Div. 121, 122) it was stated: “ Before granting a declaratory judgment the court must be convinced it will serve some practical purpose by disposing of real controversies and stabilizing disputed legal relations (Wardrop Co., Inc., v. Fairfield Gardens, Inc., 237 App. Div. 605).”

With respect to an injunction “ the defendant has so far done nothing but talk and has taken no steps which in any way affect plaintiff’s property rights. If he had actually instituted an action in some jurisdiction, there might be justification for equitable interference. Until some affirmative act is taken, the court should not interfere to grant the relief asked.” (De Raay v. De Raay, 255 App. Div. 544, 546, affd. 280 N. Y. 822.)

Settle order on notice.