Opinion
July 6, 1973
Appeal from the Steuben Trial Term.
Present — Del Vecchio, J.P., Marsh, Witmer, Cardamone and Henry, JJ.
Order unanimously modified by deleting the second decretal paragraph thereof and as modified affirmed with costs to appellants. Memorandum: Plaintiffs, suing on behalf of themselves and all other members of the City of Corning Fire Department, appeal from an order which granted defendants' motion to dismiss the first and second causes of action in the complaint. Defendants' motion to dismiss the third cause of action was denied and defendants have not appealed. The first cause of action for money damages was properly dismissed. The second cause of action for a declaration as to the proper disposition to be made of the funds received by the fiscal officer of the City of Corning pursuant to the provisions of sections 553 Ins. and 554 Ins. of the Insurance Law, which provide that such funds are for the use and benefit of the Fire Department, sufficiently alleges a failure by defendants to so use the funds. A complaint in an action for a declaratory judgment will not be dismissed where, as in this case, it is shown that the controversy is real and that a declaratory judgment would be useful. ( Lanza v. Wagner, 11 N.Y.2d 317, 334; Rockland Light Power Co. v. City of New York, 289 N.Y. 45, 50-51.)