Newburger v. Lubell
| Decision Date | 17 November 1931 |
| Citation | 257 N.Y. 383,178 N.E. 669 |
| Parties | NEWBURGER et al. v. LUBELL |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Alfred H. Newburger and others against Jacob J. Lubell. Order denying defendant's motion to dismiss the complaint was reversed by the Appellate Division (232 App. Div. 501, 250 N. Y. S. 363), which granted the motion and directed judgment for defendant, and plaintiffs appeal.
Affirmed.
See, also, 257 N. Y. 213, 177 N. E. 424.
Appeal from Supreme Court, Appellate Division, First Department.
Osmond K. Fraenkel, of New York City, for appellants.
Isaac Cohen, of New York City, for respondent.
Julius Henry Cohen and Kenneth Dayton, both of New York City, for Chamber of Commerce of the State of New York, amicus curiae.
The question to be determined is whether the Appellate Division exercised its discretion erroneously in holding the complaint insufficient to require the court to proceed to a declaratory judgment.
The plaintiffs, a firm of stockbrokers, bought and sold securities for the defendant, and carried them for his account, under a written agreement that any controversy arising between the parties to the account should be determined by arbitration. As the result of their transactions, the defendant became indebted to the plaintiffs on January 2, 1931, in the sum of $48,937.23, which indebtedness the defendant is alleged to have confirmed and approved. In partial liquidation of this debit balance the plaintiffs applied securities belonging to the defendant's brothers of the value of $34,374.26, under a claim that such use was authorized by the terms of guaranties in writing. The brothers have contested the plaintiffs' right to apply the securities or the proceeds upon account of the defendant's debt, and have submitted the controversy to the decision of arbitrators. To that arbitration the defendant is not a party. If the use of the proceeds is confirmed by the arbitrators, the balance due from the defendant will be reduced to the sum of $14,562.97; if it is not confirmed, the debit balance will be left at $48,937.23, the figure at which it stood at the close of the account.
The plaintiffs say that they do not know of any controversy now existing between themselves and the defendant. They have requested the defendant to advise them whether he claims that any controversy exists, but he has not responded to the call. They are fearful that an action at law to recover the balance due may be deemed to be a waiver of the right to resort to arbitration if thereafter it shall develop as the result of the defendant's answer or otherwise that a controversy exists, and they are fearful, on the other hand, that a petition at this time for the appointment of an arbitrator may be met by the objection that in the absence of a controversy there is no need of the appointment, and nothing to decide.
Accordingly, they demand judgment declaring that no controversy exists between them and the defendant, and for the sum of $48,937.23, upon which judgment they agree to credit any sums received from the defendant's brothers pursuant to the guaranties; or, in the alternative, if any controversy exists, that arbitration be directed to proceed in accordance with the contract.
A suit for a declaratory judgment is a discretionary remedy (Civil Practice Act, § 473), which may be withheld if existing forms of action are reasonably adequate. Rules of Civil Practice, rule 212. Adequate we think they are.
The plaintiffs may sue at law and reduce their claim to judgment. If the defendant does not contest the debt, they will have judgment by default. On the other hand, if he does contest, with the result that a controversy develops, they will be free to...
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Davis Const. Corp. v. Suffolk County
...Gilbert v. Village of Larchmont, 280 App.Div. 1000, 116 N.Y.S.2d 890) or where other full and adequate remedies exist (Newburger v. Lubell, 257 N.Y. 383, 178 N.E. 669; James v. Alderton Dock Yards, 256 N.Y. 298, 176 N.E. 401). However, the mere pendency of another action or the existence of......
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Delaware, L.&W.R. Co. v. Slocum
...discretion in refusing to proceed to a declaratory judgment when other remedies are adequate, and that is all we held in Newburger v. Lubell, 257 N.Y. 383, 178 N.E. 669. When, however, another action between the same parties, in which all issues could be determined, is actually pending at t......
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Russell v. Marboro Books
...137 N.Y.S.2d 806, 810-811.) As the remedy of declaratory judgment is in the first instance discretionary with the court (Newburger v. Lubell, 257 N.Y. 383, 178 N.E. 669; Crantson v. Walton-164th Street Corp., Sup., 115 N.Y.S.2d 331) and as there is no practical purpose in maintaining the 'S......
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New York Institute for Ed. of Blind v. United Federation of Teachers' Committee for New York Institute for Ed. of Blind
...other administrative and judicial proceedings. (See James v. Alderton Dock Yards, 256 N.Y. 298, 305, 176 N.E. 401; Newburger v. Lubell, 257 N.Y. 383, 386, 178 N.E. 669.) Accordingly, the judgment, Supreme Court, New York County, entered February 13, 1980, which denied defendants' motions to......