The opinion
Callahan, J.
(dissenting). Assuming that it might not be proper to grant the injunctive relief sought, I consider that the pleading sufficiently sets forth a cause of action for a declaration of the rights and legal relations of the parties. Declaratory judgment should not be denied on the theory that plaintiff may obtain relief by intervening in the New Jersey action. Belief should not be denied by the courts of this State to a New York resident upon that ground. Furthermore, the action in New Jersey was not between the same parties and, therefore, such cases as Colson v. Pelgram ( 259 N. Y. 370 ) and Willard v. Schaffer Stores Co. ( 272 N. Y. 304 ) are distinguishable. There are sufficient jural relations between plaintiff and defendants Mayflower, Segal Corporation and Segal to sustain an action for declaratory judgment when the latter are interfering with plaintiff’s opportunity to enjoy the fruits of his contract with Thor. The real controversy between those parties is which one of them is entitled to sell Thor products in the metropolitan territory and an action for malicious interference with contract rights might fail to settle this controversy, or otherwise be an inadequate remedy.
I vote to affirm the order sustaining the complaint.
Peck, P. J., Glennon and Shientag, JJ., concur with Cohn, J.; Callahan, J., dissents and votes to affirm, in opinion.
Order reversed, with one bill of $20 costs and disbursements to the appellants and the motion granted, and judgment is directed to be entered dismissing the complaint herein, with costs.