
    RCA Communications, Inc., Appellant, v. Patchogue Broadcasting Company, Inc., et al., Respondents, et al., Defendant.
   In an action to enjoin a nuisance arising from interference with plaintiff’s radio reception and transmission, the plaintiff appeals from an order of the Supreme Court, Suffolk County, dated March 30, 1960, granting a motion 'by the defendants Patchogue Broadcasting Company, Inc., and Riverhead Broadcasting Company, Inc., to dismiss the complaint for lack of jurisdiction upon the ground that said defendants’ operation of an existing and a proposed radio broadcasting station has been duly permitted by the Federal Communications Commission, and hence, such operation is beyond the control of State courts. Order reversed, with $10 costs and disbursements, and motion denied. The motion to dismiss was addressed to the sufficiency of the complaint, charging lack of jurisdiction appearing on its face. The defect, upon which such a motion is based, must appear from the complaint alone (Rules Civ. Prae., rule 106). There is no allegation in the complaint' which states, or from which it may be inferred, that operation of either the existing or the proposed broadcasting station has been licensed or permitted by the Federal Communications Commission, or that any application has been made to the Federal Communications Commission for a license or permit. Such license or permit is not such a matter of public record as would warant its judicial notice, partieuuarly in the absence of any information regarding such public record and in the absence of any request for such judicial notice (cf. Wagner v. Derecktor, 306 N. Y. 386). Beldoek, Acting P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.  