Opinion
November 27, 1951.
Present — Glennon, J.P., Dore, Cohn and Callahan, JJ.;
Order affirmed, with $20 costs and disbursements to respondent. The defense of res judicata was properly stricken. No splitting of causes of action is involved. The prior action was for a declaratory judgment. In such an action a plaintiff does not seek to enforce a claim against the defendant. He seeks a judicial declaration of the rights of the parties for the purpose of guiding their future conduct. The court may refuse to entertain a declaratory judgment action and, where it does entertain it, the court may refuse to award all relief sought and relegate the parties to an independent action for such other relief. It may not be said therefore that plaintiff here could or should have sought his damages in the prior action. That action merely established his rights and he is free to seek compensation from anyone who has violated those rights.
Callahan, J., dissents and votes to reverse and deny the motion in the following memorandum:
In the prior action, the plaintiff sought an injunction as well as declaratory judgment and he might have secured damages in that suit and the judgment is, therefore, res judicata. [See post, p. 789.]