
    (May 20, 1974)
    Mitchell Berenson et al., Respondents-Appellants, v. Town of New Castle et al., Appellants-Respondents.
   Motion by plaintiffs (1) to resettle (treated by this court as a motion to amend) an order of this court, dated March 11, 1974 (which determined an appeal by defendants from a portion of an order of the Supreme Court, Westchester County, dated November 9, 1973), so as to provide that plaintiffs’ appeal from the same order of November 9, 1973 was considered by this court and to provide further that the portion of the order of November 9, 1973 from which plaintiffs appealed is reversed and that plaintiffs’ motion for summary judgment is granted; and (2) if such reversal in plaintiffs’ favor be not granted, for leave to appeal to the Court of Appeals. (Plaintiffs’ notice of cross appeal was not included in defendants’ appendix on the appeal.) Motion granted to the extent that this court’s decision dated March 11, 1974 is amended as set forth hereinbelow, plaintiffs’ notice of cross appeal, dated November 28, 1973, is deemed included in the above-mentioned appendix, and leave is granted to plaintiffs to appeal to the Court of Appeals from the order to be made hereon by this court. Questions of law have arisen which ought to be reviewed by the Court of Appeals. The following question is certified: Was the order of this court, dated May 20, 1974, correctly made? Motion otherwise denied. The decision dated March 11, 1974 is amended to read as follows: “ In an action for a declaratory judgment, (1) defendants appeal from so much of an order of the Supreme Court, Westchester County, dated November 9, 1973, as denied a cross motion by them to dismiss the complaint or, in the alternative, for summary judgment; and (2) plaintiffs cross-appeal from the remainder of the order, i.e., from so much thereof as denied their motion for summary judgment and directed that the verified amended complaint be deemed amended by deletion of paragraph ’forty-fifth’ therefrom. Order affirmed, without costs. Although both sides upon the argument of this appeal agreed that only a question of law is involved, we do not view the record in that light. We think that there are questions of fact as delineated by the Justice at Special Term.” Gulotta, P. J., Hopkins, Latham, Shapiro and Cohalan, JJ., concur.  