Opinion
No. 3416.
Decided June 1, 1943.
A petition for a declaratory judgment is not maintainable where other remedy is available and adequate.
PETITION, for a declaratory judgment. When the petition was brought, the defendant had pending an action at law against the plaintiff, in bar of which the plaintiff alleges a covenant not to sue her given by the defendant before the action at law was instituted.
The defendant's motion that the petition be dismissed was granted on the ground that the plaintiff has "in law and equity adequate remedy," and the plaintiff excepted. Transferred by Johnston, J.
Murchie Murchie, by brief, for the plaintiff.
William H. Sleeper, by brief, for the defendant.
The validity of the covenant not to sue may be litigated in the action at law. Schofield v. Company, 90 N.H. 31; Dion v. Mills, ante, 414. The construction of the declaratory judgment statute (R. L., c. 370, s. 20) barring its service when other remedy is available and adequate (Gitsis v. Thornton, 91 N.H. 192, and cases cited) therefore required the dismissal of the petition. The reasons assigned for a reversal of the construction or for an exception to it in the case are not sufficiently impressive to invite discussion.
Exception overruled.