Opinion
December 16, 1938.
Appeal from Supreme Court of New York County.
Charles H. Tuttle of counsel [ Parmly, Stetson, Woodward Gaffney, attorneys], for the appellant. Henry A. Uterhart of counsel [ Alfred M. Schaffer with him on the brief; Uterhart Schaffer, attorneys], for the respondent.
Present — MARTIN, P.J., TOWNLEY, UNTERMYER, COHN and CALLAHAN, JJ.
Plaintiff, though a non-resident, has the legal capacity to sue. ( Dean v. Dean, 241 N.Y. 240; Gregonis v. P. R. Coal Iron Co., 235 id. 152, 159.) That the court has jurisdiction of the subject-matter of the action in the sense that it has power to enter a judgment in an action of this character is not open to doubt. ( Baumann v. Baumann, 222 App. Div. 460; 224 id. 719; modfd. and affd., 250 N.Y. 382.) As to whether the court in the exercise of its discretion should decline to pronounce a declaratory judgment may be determined at a later time upon an adducement of all the facts. In any event the notice of motion does not attack the complaint for legal insufficiency. The order should accordingly be affirmed, with twenty dollars costs and disbursements, with leave to the defendant-appellant to answer within twenty days after service of order upon payment of said costs.
Order unanimously affirmed, with twenty dollars costs and disbursements, with leave to the defendant-appellant to answer within twenty days after service of order upon payment of said costs.