Amusement Enterprises, Inc. v. Fielding

In an action for a declaratory judgment, judgment has been entered in favor of respondent, a manufacturer of a game known as “Bank Ball”, declaring that such game is a “ game of amusement and skill ”, that it is not readily convertible within the meaning of section 982 of the Penal Law, that no license is required under the Administrative Code of the City of New York for the operation of such game, and granting incidental relief by way of injunction restraining the destruction of plaintiff’s property, pending final decision in this action. Appellants, although they appealed from the entire judgment, have challenged only the provisions thereof which grant a declaratory judgment to the effect that plaintiff’s games do not violate the relevant provisions of the Penal Law. Judgment modified on the law by striking out the decretal paragraphs thereof numbered 1 and 2, and, as thus modified, unanimously affirmed, without costs. This action is not one in which a declaratory judgment may be rendered. (Reed v. Littleton, 249 App. Div. 310, affd. 275 R. Y. 150; International Mutoscope Heel Co. v. Valentine, 271 R. Y. 622; David V. American Society for P. of C. to An., 75 N. Y. 362.) Present — Carswell, Acting P. J., Johnston, Adel, Rolan and Sneed, JJ.