248 A.D. 598 | N.Y. App. Div. | 1936
Motion for leave to appeal to the Court of Appeals denied. Present —■ Lazansky, P. J., Carswell, Davis, Adel and Taylor, JJ. On the court’s own motion, the decision of this court handed down on April 13,1936 [247 App. Div. 901], is hereby amended to read as follows: Appeal by the town of Oyster Bay from two orders and the judgment entered on the second order, dismissing the complaint. The action is brought to restrain the collection of tolls for passage on the Wantagh Causeway, which connects the mainland of Long Island with Jones Beach. Inasmuch as an answer was recited in the notice of motion, the court has considered the motion as one for judgment on the pleadings, and the order dated August 15, 1935, as a resettled order. The appeal from the order dated July 20, 1935, is dismissed, without costs. The order dated August 15, 1935, and the judgment entered thereon are unanimously affirmed, with ten dollars costs and disbursements. There is no dispute presented here as to any material question of fact, and it affirmatively appears that there is no breach of covenant, as alleged in the complaint. The covenants with the two towns in respect to construction and maintenance or otherwise show that the towns
