Opinion
November 9, 1950.
Present — Taylor, P.J., McCurn, Love, Kimball and Piper, JJ.
Order reversed on the law, with $10 costs and disbursements, and motion granted, with $10 costs. Memorandum: The action is for a judgment to determine, construe, and declare the legal rights and relations of the parties in respect to a certain contract and an assignment thereof. It appears from the complaint that the plaintiff corporation is a creditor of Tompkins, individually, and that certain others are creditors of either the plaintiff corporation or Tompkins, individually. Neither the contract with the State nor the assignment to the bank is set out. There are no facts pleaded which show any dispute between any of the parties requiring an adjudication and declaration of their jural relations. What the dispute is does not appear. The creditors have an adequate remedy at law. In the absence of allegations of fact showing a justiciable controversy, the court should not take jurisdiction of the action for a declaratory judgment. (See Red Robin Stores v. Rose, 274 App. Div. 462.) Further, we think that this is not a case where a representative action lies. ( Brenner v. Title Guar. Trust Co., 276 N.Y. 230.) All concur. (Appeal from an order denying defendant's motion to dismiss the complaint pursuant to rules 106 and 212 of the Rules of Civil Practice.)