Casanave v. Robbins

In an action for a declaratory judgment, order, in so far as it denies defendants’ motions to dismiss the complaint as insufficient in law, reversed on the law and the facts, with one bill of ten dollars costs and disbursements, and the motion granted to the extent of dismissing the complaint, with one bill of ten dollars costs, with leave to serve an amended complaint within ten days from the entry of the order hereon. In the exercise of sound discretion, an action for a declaratory judgment should not be entertained on the facts set out in the complaint herein. The plaintiff Edward P. Casanave should seek his remedy in a direct action for damages as all the rights in his favor against the defendants have accrued and may be redressed in an action or actions at law. (Frishon Realty Corp. v. Stern, 261 App. Div. 990.) The coplaintiff Charles L. Casanave is not a real party in interest under the facts set out in the complaint. The allegations of the complaint merely allege grievances in Edward P. Casanave. Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ., concur.