Opinion
February 26, 1962
In an action to enjoin defendant from continuing upon its land a nonconforming use (excavating and removing sand, gravel, etc., from defendant's land, and operating a plant thereon) until a permit shall have been issued pursuant to the zoning ordinance of the plaintiff town, as amended August 29, 1960, the town appeals from so much of an order of the Supreme Court, Westchester County, dated December 1, 1961, as denied its motion for partial summary judgment under rule 114 of the Rules of Civil Practice, to restrain defendant from excavating sand, gravel, etc. and from operating its plant for the processing of such excavated materials only, and as failed to sever the action for trial with respect to the issues pertaining to the use of defendant's plant for processing sand, gravel, etc., "from outside sources." The proper use of this land has been the subject of prior appeals in this court ( Town of Somers v. Camarco, 284 App. Div. 979, affd. 308 N.Y. 537; 12 A.D.2d 977, 13 A.D.2d 531). Order insofar as appealed from, affirmed, with $10 costs and disbursements. No opinion. Beldock, P.J., Ughetta, Kleinfeld, Christ and Rabin, JJ., concur.