
    In the Matter of E. Robert Pratt et al., Respondents, against Edward P. Larkin et al., Constituting the Town Board of the Town of Hempstead, Nassau County, Appellants.
   In a proceeding to review the determination of the Town Board of the Town of Hempstead denying an application for the necessary permits to erect and maintain a gasoline filling station with the required storage tanks, the Town Board appeals (1) from an intermediate order denying a motion to dismiss the petition as insufficient in law (Civ. Prac. Act, § 1293) and (2) from a final order annulling the determination and directing the issuance of such permits. Intermediate order affirmed, without coats, and final order reversed, without costs, and proceeding remitted to the Special Term for determination pursuant to subdivision 7 of section 267 of the Town Law. The answer served by appellants failed to comply with the provisions of section 1291 of the Civil Practice Act in that it did not set forth any facts to show the grounds of the action taken by them, which was complained of, and appellants did not serve with their answer any affidavit showing evidentiary facts which would entitled them to a trial. On the denial of the motion to dismiss the petition for insufficiency, the deficiencies in the papers were called to appellants’ attention by the Special Term, and permission was given to make the necessary amendments. Thereafter an affidavit by appellant Drischell was served, setting forth the grounds on which appellants had acted. This affidavit was, if considered a compliance with section 1291 of the Civil Practice Act, sufficient to entitle appellants to a trial of the issues. Technically, the papers submitted by appellants were still insufficient, since their answer had not been amended. Respondents, however, did not treat them as such, but served a reply affidavit in support of their application for relief, and the Special Term, although again calling attention to the deficiency in the answer, determined the controversy between the parties, on the merits, on consideration only of the papers submitted. The issues presented should not have been decided until the facts had been determined as provided in section 267 of the Town Law. Nolan, P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ., concur.  