Opinion
October 17, 1958
Appeal from the Erie Special Term.
Present — McCurn, P.J., Kimball, Williams and Bastow, JJ.
Judgment and order reversed on the law, without costs of this appeal to any party, and declaratory judgment granted in favor of the defendant, without costs. Memorandum: Special Term reached the correct conclusion that the plaintiffs were not entitled to a declaration that the policy issued by defendant was in force at the time of the happening of the accident described in the complaint. It was error, however, to dismiss the complaint. The defendant having demanded in its answer a declaration that the policy did not cover the cause of action brought by a third party against the plaintiffs it was entitled to such a declaration upon the merits. (Cf. Hoffman v. City of Syracuse, 2 A.D.2d 653, mod. 2 N.Y.2d 484.) All concur.