Opinion
No. 164.
January 29, 1942.
Appeal from the District Court of the United States for the Southern District of New York.
Action by the Associated Indemnity Corporation against Garrow Company, Incorporated, Bernardo Esposito, and 100 Bennett Avenue Corporation, under the Federal Declaratory Judgments Act, Jud.Code § 274d, 28 U.S.C.A. § 400, wherein plaintiff, insurer on a public liability policy issued to defendant Garrow Company, Incorporated, sought a declaration of nonliability to protect or indemnify the insured against a personal injury action which defendant Bernardo Esposito had commenced in a state court. From a judgment for plaintiff, 39 F. Supp. 100, defendants Garrow Company, Incorporated, and Bernardo Esposito appeal.
Judgment affirmed.
Louis Solomon, of New York City, for Esposito, appellant.
Harry L. Fein, of New York City (Isidor Enselman, Louis Solomon, and Harry L. Fein, all of New York City, of counsel), for Garrow Co., appellant.
Joseph M. Leahey, of New York City, for appellee.
Before SWAN, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
Upon the merits of the controversy we are content to affirm upon Judge Clark's opinion reported in 39 F. Supp. 100. We are not, however, to be understood as holding that the granting of declaratory relief is always mandatory rather than discretionary when another action is pending. Some of Judge Clark's remarks concerning Maryland Casualty Co. v. Pacific Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826, have been thought to express that view. See Note, 51 Yale L.J. 511. We doubt if they go so far. At least we do not take that position. In the case at bar the issue of liability under the policy could not be raised in the pending tort action to which the insurer was not a party. It would have been an abuse of discretion not to decide it in the declaratory judgment suit. Excess Ins. Co. of America v. Brillhart, 10 Cir., 121 F.2d 776. As already stated, we think that it was rightly decided.
Judgment affirmed.