Messina v. City of Batavia — 38 A.D.2d 678

Majority

p. 678

John Messina et al., on Behalf of Themselves and All Other Residents and Property Owners in the City of Batavia, Similarly Situated, Appellants, v. City of Batavia, Respondent.

Order and judgment unanimously modified 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). (Appeal from judgment and order of Erie Special Term dismissing complaint

p. 679

in declaratory judgment action.) Present — Del Vecchio, J. P., Witmer, Gabrielli, Cardamone and Henry, JJ.

Cases cited

Lanza v. Wagner 11 N Y 2d 317 N.Y. 1962-05-17 at 334 p. 678
Town of Pittsford v. Gallea 18 N Y 2d 920 N.Y. 1966-12-01 p. 678