Opinion
December, 1933.
Judgment dismissing the complaint reversed on the law and a new trial granted on the issues of the validity of the lien and the payments made to Riordan in discharge thereof, with costs to plaintiff to abide the event, on the ground that the plaintiff is entitled to maintain this action for a declaratory judgment. The validity of the lien depends upon the legal effect of the document alleged to have created it, and whether there was an existing debt to Riordan, which it was necessary to pay in order to discharge the apartment lien, and which was unpaid at the time plaintiff entered into the agreement to pay and satisfy it. These questions have not been tried and determined for the reason that the court at Special Term erroneously held that the action for a declaratory judgment could not be maintained. It was within the sound discretion of the court to permit this action to be maintained, for no other available remedy was open to plaintiff. If plaintiff's title was in fact and in law defective and unmarketable, the defendant title company should not be permitted to escape liability by adroit procedural maneuvers. For the purpose of granting a new trial all findings of fact are reversed and the conclusions of law disapproved. Lazansky, P.J., Kapper, Carswell, Tompkins and Davis, JJ., concur.