Messina v. City of Batavia

Full title: JOHN MESSINA et al., on Behalf of Themselves and All Other Residents and…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 9, 1971

38 A.D.2d 678 (N.Y. App. Div. 1971)

Opinion

December 9, 1971

Appeal from the Erie Special Term.

Present — Del Vecchio, J.P., Witmer, Gabrielli, Cardamone and Henry, JJ.

Order and judgment unanimously modified in accordance with the memorandum and as modified affirmed, without costs. Memorandum: Since the action is one for declaratory judgment the court should have declared the validity of the resolutions of March 9, 1970 and June 29, 1970 instead of dismissing the amended complaint (see Lanza v. Wagner, 11 N.Y.2d 317, 334; Town of Pittsford v. Gallea, 25 A.D.2d 479, affd. 18 N.Y.2d 920; 24 Carmody-Wait 2d, New York Practice, § 147:37).