Talbott v. Westnau Land Corp.

In an action to declare a deed of real property executed by plaintiffs to defendant Westnau Land Corp. a nullity and to recover damages, plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, dated October 6, 1972 and made after a nonjury trial, which, inter alla, declined to render the declaration requested. Judgment modified, on the law, by striking therefrom the decretal provision declining to render the declaration requested and by substituting therefor a provision declaring that the deed is good and lawful. As so modified, judgment affirmed, without costs. When in an action for declaratory judgment the plaintiff is not entitled to the declaration sought, the complaint should not be dismissed but the court should declare the parties’ rights with respect to the subject matter of the litigation (Lamm v. Wagner, 11 N Y 2d 317, 334). Latham, Shapiro, Gulotta and Benjamin, JJ., concur; Munder, Acting P. J., not voting.