Judgment, Supreme Court, New York County, entered January 28, 1971, unanimously modified, on the law, to the extent of striking therefrom that part of the last decretal paragraph which dismisses the complaint, and substituting therefor a provision declaring that the emergency and medical admission sections of the Mental Hygiene Law (§ 78, subd. 1 and § 72, subd. 1) are constitutional and valid; and, as so modified, affirmed, without costs and without disbursements. Since this was an action for declaratory judgment, it was error, in granting summary judgment to defendants, to direct dismissal of the complaint, and a declaration as to the constitutionality of the sections attacked should have been made. (See Lanza v. Wagner, 11 N.Y.2d 317; New York Sporting Arms Assn. v. City of New York, 31 A.D.2d 793, and cases cited therein.
Concur — Capozzoli, J.P., Nunez, Kupferman, Steuer and Eager, JJ. [ 65 Misc.2d 163.]