Opinion
November 13, 1956
Upon the trial of this action for a judgment declaring the rights of stockholders and directors of this New Jersey corporation, it was disclosed that a proceeding was pending in the New Jersey courts in which the issues involved in this case would necessarily have to be decided. Under the circumstances, the discretionary remedy of declaratory judgment should be withheld and the judgment appealed from unanimously modified so as to provide for the dismissal of the defendants' counterclaim and, as so modified, affirmed. ( City of New York v. Maltbie, 248 App. Div. 39; Trustees of Columbia University v. Kalvin, 226 App. Div. 775.) Settle order on notice.
Concur — Breitel, J.P., Botein, Rabin, Frank and Valente, JJ.