Woods v. Wallander

193 Misc. 937, 85 N.Y.S.2d 778, 1948 N.Y. Misc. LEXIS 3861

Opinion

Hofstadter, J.

Motion to dismiss the complaint is denied. The widow and minor children of a deceased member of the city police force seek a declaratory judgment determining them entitled to a pension. The defendant challenges the complaint on the single ground that an action for a declaratory judgment will not lie. It seems, however, that where a statute imposes on a public body a duty to make recurring payments, the plaintiff’s right is regarded as continuing. Resort to a declaratory judgment action has been permitted in analogous situations and neither the joinder of a demand for a money recovery nor the availability of other remedies has defeated the action (Wakefield v. Board of Education, 192 Misc. 639, affd. with modification as to interest only, 274 App. Div. 884; Cottrell v. Board of Education, 181 Misc. 645, affd. 267 App. Div. 817, affd. 293 N. Y. 792; Nelson v. Board of Higher Education, 263 App. Div. 144, affd. 288 N. Y. 649). The defendant may answer the complaint within ten days after service of a copy of this order with notice of entry.