Opinion
May, 1931.
Present — Lazansky, P.J., Kapper, Hagarty, Carswell and Davis, JJ.
Judgment unanimously affirmed, with costs. If we were to limit the non-enforcibility of the restrictions as against the defendant alone it would not be decisive of the situation disclosed by this record. Whether the restrictions upon plaintiff's property can be enforced by owners of other lots in the tract in question should not be determined in an action seeking a judgment declaratory against such other owners in their absence. They have a right to be heard on the question of the enforcibility of the restrictions. Jurisdiction in an action for a declaratory judgment is discretionary. ( Bareham v. City of Rochester, 246 N.Y. 140, 143.) A consideration of the facts presented satisfies us that the conclusion reached by the Special Term should be upheld.