Golding v. Golding

8 A.D.2d 613 | N.Y. App. Div. | 1959

Order denying defendants’ motion to dismiss the complaint in an action for declaratory judgment, on the ground that there is another action pending between the same parties for the same cause, reversed on the law, and in the exercise of discretion, without costs, and such motion is granted to the extent of dismissing the complaint, provided, however, that defendants consent by stipulation to the granting of an appropriate application in the Westchester County action to authorize an amended or supplemental pleading and process to include the matters involved in this action; but if such stipulation is not supplied by defendants within 10 days from the service of an order herein with notice of entry, then the order of Special Term is affirmed in all respects, with costs to plaintiff-respondent. While the Westchester and New York County actions are not for identical causes, no useful purpose is served by the multiplication of litigation and expense. Plaintiff can obtain all the relief which she seeks in the action pending in Westchester County, which is still not determined finally. Since defendants’ motion also sought such other and further relief as to which they might be entitled, in the exercise of discretion, this being an action for declaratory judgment, the order is conditionally reversed in the manner indicated hereinabove. This disposition is without prejudice to the bringing of another separate action for declaratory judgment, in the event plaintiff should fail to obtain an opportunity to present her request for declaratory relief in the Westchester County action. Concur — Breitel, J. P., Valente and Stevens, JJ.; M. M. Frank and McNally, JJ., dissent and vote to affirm. Settle order.