
    Irwin Sturz, Appellant, v. Aetna Casualty and Surety Company, Respondent.
   In an action for judgment declaring, inter alia, that defendant is required, by the terms of a policy of insurance issued by it to plaintiff, to defend the latter in a certain action against him, he appeals from (1) an order of the Supreme Court, Westchester County, entered January 10, 1969, which denied his motion for summary judgment; (2) a further order of the same court, entered June 26, 1970, which, inter alia, dismissed the complaint after a nonjury trial; and (3) a judgment of said court, entered June 29, 1970, inter alia, adjudging that the complaint is dismissed. Order entered January 10, 1969 affirmed. Order entered June 29, 1970 and judgment modified, on the law, by striking therefrom the decretal provisions which dismissed the complaint and by substituting therefor a provision declaring that defendant is not required by the terms of the policy of insurance to defend plaintiff in the wrongful death action described in the complaint, to pay any judgment against him in that action, or to indemnify him for moneys expended by him in the defense of that action or in the prosecution of the instant action. As so modified, judgment and said order are affirmed. Respondent is awarded a single bill of costs to cover all the appeals. When in an action for declaratory judgment the plaintiff is not entitled to the declaration sought, the complaint should not be dismissed but the court should declare the parties’ rights with respect to the subject matter of the litigation (Lanza v. Wagner, 11 N Y 2d 317, 334). Hopkins, Acting P. J., Shapiro, Gulotta, Christ and Brennan, JJ., concur.  