
    Allen R. Greene et al., Appellants, v Town of Southeast, Respondent.
   In an action, inter alia, (1) to declare null and void as to the plaintiffs the action of the Town Board of the Town of Southeast in repealing article 17 of the Zoning Ordinance of the Town of Southeast, and (2) to recover damages resulting from a claimed willful delay of the town board in considering their application for a special exception, plaintiffs appeal from a judgment of the Supreme Court, Putnam County (Beisheim, J.), dated November 2, 1979, which, after a nonjury trial, dismissed both causes on the merits. Judgment modified, on the law, by deleting the first decretal paragraph and substituting therefor a provision declaring that the action of the Town Board of the Town of Southeast in repealing article 17 of the Zoning Ordinance of the Town of Southeast was not null and void as applied to plaintiffs. As so modified, judgment affirmed, with costs to defendant. We agree with Trial Term that the action of the Town Board of the Town of Southeast in repealing article 17 of the Zoning Ordinance of the Town of Southeast was not null and void as applied to plaintiffs. However, it was error to dismiss plaintiffs’ cause for a declaratory judgment merely because plaintiffs were not entitled to the declaration sought by them (see Lanza v Wagner, 11 NY2d 317, 334, app dsmd 371 US 74). Instead, a declaration as to the rights of the parties should have been made. Damiani, J. P., Titone, Mangano and Weinstein, JJ., concur.  