130 Misc. 55 | N.Y. Sup. Ct. | 1927
This action is in the form of a declaratory action in which the plaintiffs seek not only to have their respective liabilities determined, but the liability of the defendants to the plaintiffs and to one another. It is contended that the provisions of the practice relating to declaratory judgments do not apply. The plaintiff, The Town Board of the Town of Greece, made a contract with the defendant Joseph M. Murray for the improvement of certain highways in the town of Greece. The defendant Continental Casualty Company is a surety on his bond for the faithful performance of the contract. The defendant Flaherty is a subcontractor who makes a claim under the contract, and the defendants Wooden, Schell and Lum are water commissioners who
The idea of a declaratory judgment was first officially suggested by the report of the Board of Statutory Consolidation to the Legislature in 1915, of which board John G. Milburn, Adelbert Moot and Charles C. Collin were members at that time, William B. Hornblower having died. The idea was borrowed from the English practice. (Order 25, rule 5; Order 54A, rule 1.) The practice, under the English rules, was confined to the determination of any construction arising under a deed, will or other written instrument (Order 54A, rule 1), but the provisions under our practice are much broader. (Civ. Prac. Act, § 473.) This section of our Practice Act provides that the Supreme Court shall have the power “ to declare rights and other legal relations * * * whether or not further relief is or could be claimed.” It will thus be seen that the declaration is not confined to the construction of a deed, will or other written instrument, as in the English practice, but is extended to any rights or other legal relations.
The Practice Act seems further to contemplate that there may be a declaration of fact as well as of law, and that executory rights may be determined. This extension of the English idea of declaratory judgments is evident from an examination of the rules designed to give effect to the provision in the Civil Practice Act. They provide that the action shall follow the forms and practice for other actions (rule 210); that the prayer for relief shall specify whether “ further or consequential relief ” is or could be claimed (rule 211), and that questions of fact necessary to be determined before judgment can be rendered may be sent to a jury for determination, and that the provisions of the Civil Practice Act relating to the trial of specific questions of fact shall apply to a verdict rendered by a jury (rule 213).
Thus it seems to be contemplated not only that questions of fact incidental to the construction of a written instrument may be
Any abuse in the application of these provisions is fully protected by the guaranty of a jury trial under the Constitution, and the rule which provides that the court, in its discretion, may decline to pronounce a declaratory judgment in any case (rule 212).
The motion to dismiss is denied, and the parties are remanded to such further proceedings as the law prescribes.
So ordered.