Malkenson v. Journal-News Corp.

Per Curiam. We think the allegations of the complaint were sufficient to require an exercise of the court’s discretion under rule 212 of the Rules of Civil Practice (Civ. Prac. Act, § 473) and that the court erred in dismissing the complaint “ upon the law ” (Rockland Light and Power Co. v. City of New York, 289 N. Y. 45). There is nothing upon the face of the contract to indicate an illegal invasion of the powers of the directors. What the plaintiff sought was a declaration of legal rights flowing from acts of the directors. The Appellate Division having reversed and dismissed the complaint upon the law, we assume that the dismissal was not an exercise of its extraordinary discretionary powers (Civ. Prac. Act, § 602; Newburger v. Lubell, 257 N. Y. 383, 385; Seventh Annual Report of N. Y. Judicial Council, 1941, p. 555; Batchelar v. Batchelar, 244 N. Y. 274; Matter of Berry v. Brearton, 263 N. Y. 274). Accordingly, we reverse the judgment appealed from, with costs to abide the event, and remit the case to the Appellate Division for determination as it may be advised upon the question of discretion raised in that court by defendant’s motion to dismiss. The judgment should be reversed and the case remitted to the Appellate Division for further proceedings not inconsistent with this opinion, with costs to abide the event. Loughban, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ., concur; Dye, J., taking no part. Judgment reversed, etc.