274 A.D. 929 | N.Y. App. Div. | 1948
Action in equity for a declaratory judgment, brought pursuant to section 473 of the Civil Practice Act, that an ordinance establishing the sewage disposal system in the county of Nassau is void on the ground that it was made without statutory compliance and without power and in excess of jurisdiction on the part of defendants. Before answering, defendants moved to dismiss the complaint, pursuant to rule 106, and subdivision 5 of rule 107 of the Rules of Civil Practice, (1) because the complaint does not state facts sufficient to constitute a cause of action, and (2) on the ground that there is an existing final' judgment on the merits, which bars the present action. The motion was granted and plaintiffs appeal. Order granting motion to dismiss the complaint, and the judgment entered thereon, unanimously affirmed, with $10 costs and disbursements. (Campbell v. Nassau County, 273 App. Div. 785, motion for leave to appeal denied 297 N. Y. 1032.) Present — Nolan, P. J., Carswell, Johnston, Sneed and Wenzel, JJ. [192 Misc. 821.]