Carey v. 2127 Broadway Realty Corp.

Appeal from an order of the Supreme Court at Special Term, entered October 19, 1949, in New York County, which granted a motion by defendant for a dismissal of the complaint.

After alleging that defendant refused to pay the rental stated in the sublease because it exceeds the emergency rental provided by the emer*753geney Business Rent Law (L. 1945, eh. 314, as amd.), plaintiffs set forth, in their complaint facts which, if established, might estop defendant from asserting that the sublease was not in all respects valid and subsisting. The rights and liabilities of the parties in relation to the amount of the rent under the sublease are necessarily affected by the controversy as to the alleged estoppel. The jural relations of the parties may be declared in the judgment sought in this action. We think that the action for declaratory judgment in the circumstances is proper.

The order should accordingly be reversed, with $20 costs and disbursements to the appellants, and the motion to dismiss the complaint for legal insufficiency should be denied, with leave to the defendant to answer within ten days after service of a copy of the order herein, with notice of entry thereof and on payment of said costs.

Dore, J. P., Cohn, Callahan, Van Voorhis and Shientag, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to the appellants, the motion to dismiss the complaint for legal insufficiency denied, with leave to the defendant to answer within ten days after service of a copy of the order, with notice of entry thereof, on payment of said costs. Settle order on notice.