Opinion
November 7, 1955.
On our previous decision in this case ( 285 App. Div. 669) we left open to the challenge of a new and proper pleading, the validity of the 1943 resolutions if the challenge were based on failure to conform with the statute in respect of notice, hearing and formal approval by the Mayor. The present petition, viewed literally, attacks the sufficiency of the resolutions on the specific grounds we then held available. The petition transcends these grounds by including matter which we held specifically was not available; and this is especially clear in paragraphs 21 to 27 of the petition. But since the motion of defendants was to dismiss the petition and was addressed generally to the sufficiency of the whole pleading and not merely to the parts of it which disregard our previous decision, the motion to dismiss was properly denied. Order unanimously affirmed, with $20 costs and disbursements to the respondents. Appeal from the short form order dated June 13, 1955, unanimously dismissed.
Concur — Peck, P.J., Breitel, Bastow, Cox and Bergan, JJ.