
    In the Matter of David F. Dobbins, Appellant, v. Town of Eastchester et al, Respondents.
   -In a proceeding-pursuant, to. article 78‘ of the CPLR" to enjoin' respondents . Town; óf . Eastchester and .its. supervisor: from ■granting to respondent-Eastchester Little -League, Inc., the exclúsive'.Use of public property, known, as..Francis O’Rourke Field, and.-to make, the ■ property •- available for the use of- citizens and residents' of the State óf New York other, than said Little League, Inc.-,. petitioner .appeals .from (1) a judgment'of the' Supreme Court, Westchester County, dated -June 26, 1972, which- dismissed, the' ’ petition, without a hearing, and (.2) . an order of the same court, dated. July 24, .1972, which denied his motion .for.reargument. ..Judgment and order reversed, on the law, without costs, and proceeding remitted to ■ Special Term'for trial, in - accordance with the views herein set forth. In our opinion, whether respondent ■ Eastchester Little League, Inc., had been .granted -the exclusive use-of the.pub- ' lie property.in question.in violation of law was a'triable issue of. fact which, should have been tried pursuant to CPLR 7804 (subd. [h]). Rabin,; P. j., Martuscello and Shapiro, JJ., concur; Hopkins, and Munder, JJ., dissent and . vote to affirm the judgment and order.  