Sweeney v. Cannon — 30 N.Y.2d 633

p. 633

Daniel T. Sweeney, on Behalf of Himself and All Other Persons Similarly Situated, Appellant, v. Raymond J. Cannon, as Clerk of the Court of Appeals of the State of New York, Respondent.

Argued February 15, 1972;

decided March 16, 1972.

p. 634

Eli Wager, David M. Shane, Jerome H. Ehrlich, Eugene S. Ginsberg and Daniel T. Sweeney, pro se, for appellant.

Louis J. Lefhowits, Attorney-General (Philip Weinberg, Samuel A. Hirshowits and Joel Lewittes of counsel), for respondent.

We agree with the Appellate Division, and for the reasons set forth in its opinion, that section 467-a of the Judiciary Law (L. 1963, ch. 204) is constitutional. However, since this is an action for a declaratory judgment, that court, instead of dismissing the complaint, should have made a declaration as to the constitutionality of the challenged section. (See, e.g., Lanza v. Wagner, 11 N Y 2d 317 , 334; Fhagen v. Miller, 36 A D 2d 926 , 927, affd. 29 N Y 2d 348 .) The order appealed from should be modified, without costs, to the extent of directing judgment in favor of defendant, declaring that section 467-a of the Judiciary Law is constitutional and, except as so modified, affirmed.

Concur: Chief Judge Fttld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson.

Cases cited

Lanza v. Wagner 11 N Y 2d 317 N.Y. 1962-05-17 at 334 p. 634
Fhagen v. Miller 36 A D 2d 926 N.Y. App. Div. 1971-05-13 at 927 p. 634
Fhagen v. Miller 29 N Y 2d 348 N.Y. 1972-01-06 p. 634