¶1A review of the testimony of this case leads to the conclusion that there was no necessity for a declaratory judgment. We think that in the exercise of the court’s discretion a declaratory judgment should have been refused. (James v. Alderton Dock Yards, 256 N. Y. 298, 305; Somberg v. Somberg, 263 id. 1; Kennedy v. Doyle, 229 App. Div. 756.) On the appeal by defendant, the judgment accordingly should be reversed and the complaint dismissed. In view of this disposition, the cross-appeal by plaintiff should be dismissed.
¶2Present — Martin, P. J., Townley, Glennon and Cohn, JJ.
¶3Judgment unanimously reversed and the complaint dismissed. Cross-appeal by the plaintiff dismissed. Settle order on notice, reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.