Opinion
December 14, 1948.
John P. McGrath, Corporation Counsel ( Frank H. Crabtree of counsel), for defendants.
Benjamin M. Zelman and Irving P. Zelman for plaintiffs.
Motion to dismiss the complaint is denied. The widow and minor children of a deceased member of the city police force seek a declaratory judgment determining them entitled to a pension. The defendant challenges the complaint on the single ground that an action for a declaratory judgment will not lie. It seems, however, that where a statute imposes on a public body a duty to make recurring payments, the plaintiff's right is regarded as continuing. Resort to a declaratory judgment action has been permitted in analogous situations and neither the joinder of a demand for a money recovery nor the availability of other remedies has defeated the action ( Wakefield v. Board of Education, 192 Misc. 639, affd. with modification as to interest only, 274 A.D. 884; Cottrell v. Board of Education, 181 Misc. 645, affd. 267 A.D. 817, affd. 293 N.Y. 792; Nelson v. Board of Higher Education, 263 A.D. 144, affd. 288 N.Y. 649). The defendant may answer the complaint within ten days after service of a copy of this order with notice of entry.