Sweeney v. Cannon

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…