Opinion
June 29, 1967
Judgment of the Supreme Court, Westchester County, dated April 20, 1965, modified, on the law, by (1) amending the first decretal paragraph, which directs dismissal of the complaint, so as to except therefrom so much of the complaint as pertains to section 54-b R.R. of the Railroad Law, and (2) adding a provision in favor of defendants, declaring that said section is constitutional. (The appeal was limited, by appellants' brief, to consideration of said section only.) As so modified, judgment affirmed insofar as appealed from, with costs to each respondent or respondents who filed separate briefs. The findings of fact are affirmed. The court having determined that plaintiffs are not entitled to the declaration sought by them, should have declared that the statute in question is constitutional, instead of dismissing the complaint ( Lanza v. Wagner, 11 N.Y.2d 317, 334, app. dsmd. 371 U.S. 74; Martin v. State Liq. Auth., 43 Misc.2d 682, 690, affd. 15 N.Y.2d 707). Otherwise, we affirm on the opinion of the Justice at Trial Term. Beldock, P.J., Christ, Rabin, Benjamin and Munder, JJ., concur. [ 46 Misc.2d 68.]