Opinion
December 21, 1951.
In an action to enjoin defendants from occupying or using a certain garage building in violation of the zoning ordinance, to direct the removal of the garage, and to restrain its alleged unlawful manner of operation, plaintiff appeals from an order denying his motion to strike the action from the Trial Term Calendar, and granting defendants' cross motion to strike the action from the Special Term Calendar. Order reversed on the law and the facts, with $10 costs and disbursements, plaintiff's motion granted, without costs, and defendants' cross motion denied, without costs. In our opinion, this is not an action at law "for a nuisance" within the meaning of section 425 of the Civil Practice Act but is an action in equity for an injunction. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.