Elmsford Properties Corporation v. Daitch Crystal Dairies

The action is brought pursuant to section 473 of the Civil Practice Act, for a judgment declaring the rights of the parties under a written lease in which the plaintiff is the landlord and the defendants are the tenants. The complaint prays for consequential relief in the form of a declaration that plaintiff is entitled to receive from defendants, or either of them, a sum of money representing: (a) the reasonable cost of the necessary repairs heretofore made by plaintiff to the floor of the building; and (b) the rent allegedly due and unpaid under the terms of the lease, which defendants have withheld on account of a claim for damages arising out of the loss of, or interference with, the use of the premises during the time consumed by the making of said repairs. An action for a declaratory judgment should not be entertained where there is no necessity for resorting thereto (James v. Alderton Dock Yards, 256 N. Y. 298, 305). In the instant case all of the rights asserted by plaintiff against defendants have accrued, the plaintiff should seek its remedy in an action at law for damages (cf. Frishon Realty Corp. v. Stern, 261 App. Div. 990; Casanave v. Robbins, [ No. 1 ] 262 App. Div. 873). In such action, the court will have adequate power to construe the lease to such extent as may be necessary to dispose of the issues. Although the motion to dismiss was improperly made under rule 106 (subd. 4) on the ground