Sylvander v. Taber, 6 A.D.2d 987

Sylvander v. Taber

6 A.D.2d 987 | N.Y. App. Div. | 1958

Order reversed, without costs of this appeal to any party, and motion denied, without costs. Memorandum: Plaintiffs appeal from an order which granted defendants’ motion for a judgment dismissing the complaint under subdivision 4 of rule 106 of the Rules of Civil Practice. The complaint alleges nine causes of action and seeks declaratory relief pursuant to section 473 of the Civil Practice Act. Because of the nature of the relief sought we *988believe that judgment dismissing the complaint on the ground that it did not state facts sufficient to constitute a cause of action was improperly granted. We feel bound by the line of eases following Rockland Light & Power Co. v. City of New York (289 N. Y. 45, 51) which hold that a “ complaint praying for judgment declaring the ‘rights and legal relations’ of the parties should not be dismissed as insufficient merely because the facts alleged in the complaint show that the plaintiff is not entitled to a declaration of rights as the plaintiff claims them to be.” Once the complaint stated a good ground for declaratory relief it should not be dismissed as insufficient even though the court feels that defendant is clearly entitled to a declaration in its favor. (Strauss v. University of State of New York, 282 App. Div. 593, 595.) The complaint here stating sufficient grounds for declaratory relief the denial of such relief was error regardless of the merits of the substantive questions presented. (Hoffman v. City of Syracuse, 2 N Y 2d 484, 487; Marshall v. City of Norwich, 1 A D 2d 498, 499, 500; Derby v. Gayvert & Co., 286 App. Div. 1150.) See, also, Civil Service Forum v. New York City Tr. Auth. (4 A D 2d 117, 129) which upon the present record is here inapplicable. All concur. (Appeal from an order of Onondaga Special Term granting defendants’ motion to dismiss the complaint in a stockholders’ action.) Present — McCurn, P. J., Williams, Bastow, Goldman and Halpern, JJ.