Opinion
For omitted decision of October 20, see post, p. 1038. — [REP.
Action for a declaratory judgment in which plaintiff seeks a declaration in respect of her marital status. Judgment dismissing the complaint reversed on the law and the facts, with costs, and a new trial granted. The fact that an action for an annulment of marriage might be available to the plaintiff does not constitute a bar to her having recourse to an action for a declaratory judgment in respect of her marital status, which should be the true scope of the inquiry. The right to recourse to a declaratory judgment in such a situation was recognized in Baumann v. Baumann ( 250 N.Y. 382, modfg. 224 App. Div. 719; 222 App. Div. 460). While it is true that whether or not a declaratory judgment may be accorded rests in discretion (Rules Civ. Prac., rule 212), the discretion exercised must be a sound legal discretion. The foregoing case furnishes an authoritative standard for a uniform exercise of that discretion herein. The dismissal of the complaint, therefore, was error and plaintiff is entitled to a trial of the issues of fact presented by the pleadings. (Borchard on Declaratory Judgments [2d ed.], pp. 329, 331, 337, 341.) Hagarty, Acting P.J., Carswell, Adel, Nolan and Sneed, JJ., concur.