Opinion
Argued February 15, 1972
Decided March 16, 1972
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, FRANK A. GULOTTA, J.
Eli Wager, David M. Shane, Jerome H. Ehrlich, Eugene S. Ginsberg and Daniel T. Sweeney, pro se, for appellant.
Louis J. Lefkowitz, Attorney-General ( Philip Weinberg, Samuel A. Hirshowitz and Joel Lewittes of counsel), for respondent.
Order modified, without costs, in accordance with the following memorandum, and, as so modified, affirmed: We agree with the Appellate Division, and for the reasons set forth in its opinion, that section 467-a of the Judiciary Law (L. 1963, ch. 204) is constitutional. However, since this is an action for a declaratory judgment, that court, instead of dismissing the complaint, should have made a declaration as to the constitutionality of the challenged section. (See, e.g., Lanza v. Wagner, 11 N.Y.2d 317, 334; Fhagen v. Miller, 36 A.D.2d 926, 927, affd. 29 N.Y.2d 348.) The order appealed from should be modified, without costs, to the extent of directing judgment in favor of defendant, declaring that section 467-a of the Judiciary Law is constitutional and, except as so modified, affirmed.
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.