Opinion
March 7, 1949.
Proceeding under article 78 of the Civil Practice Act to vacate and annul a resolution adopted June 17, 1948, by the board of trustees of the Incorporated Village of Ocean Beach authorizing and directing the leasing of a ferry basin and terminal owned by the village, and to vacate and annul the lease granted thereunder. Order granting in part the relief sought and vacating and annulling the said resolution and lease, reversed upon the law, without costs, and the matter remitted to Special Term for trial of the issues of fact presented by the pleadings and shown by the answering affidavits. (Civ. Prac. Act, §§ 1291, 1295.) Questions of fact were presented which should not have been summarily decided. In our opinion the decision of the Court of Appeals in Matter of Ocean Beach Ferry Corp. v. Incorporated Vil. of Ocean Beach ( 298 N.Y. 30) is not determinative of the question here presented. Nolan, P.J., Carswell, Sneed, Wenzel and MacCrate, JJ., concur. [See post, p. 782.]