Citation Numbers： 11 A.D.2d 751, 201 N.Y.S.2d 595, 1960 N.Y. App. Div. LEXIS 9329
Filed Date： 6/10/1960
Status： Precedential
Modified Date： 10/28/2024
Judgment and order unanimously modified to strike therefrom the provisions that the complaint 'be dismissed, and as so modified, affirmed, with costs to respondents. Memorandum: The ultimate conclusion of the trial court was correct but this being an action for a declaratory judgment the complaint should not have been dismissed. (22 Carmody-Wait, New York Practice, § 33, p. 771.) The individual plaintiff had standing to attack the constitutionality of the statute and we treat as surplusage the statement to the contrary in the opinion of the trial court. (Appeal from judgment and order of Monroe Equity Term declaring the statute in question to be constitutional and dismissing the complaint. Trial had before Brasser, J., was received in evidence.) Present — Williams, P. J., Bastow, Halpern, McClusky and Henry, JJ.