
    In the Matter of Masder Builders, Inc., Appellant, v. David E. Overton, as Commissioner of Health of Suffolk County, Respondent.
   It is alleged in the petition that such denial of approval was unreasonable since the water system installed meets all criteria established by the Suffolk County Department of Health with respect to individual water supply systems. Respondent’s answer contains objections in point of law, denials and an affirmative defense that the property involved is part of a subdivision ” within the meaning of the Suffolk County Sanitary Code and the Public Health Law, and is therefore subject to a regulation issued by respondent at the direction of the Suffolk County Board of Health. This regulation provides, inter alia, that individual water wells shall not be used-except where the actual cost to the subdivider of extending to the nearest existing water supply exceeds 5% of the market price of the subdivided lots and/or proposed houses to be built, or a minimum or $500 per plot, whichever is greater. Respondent alleges that the parcel involved does not come within this exception, and that petitioner’s application for approval of its private water supply system was therefore properly denied. Petitioner served a reply in which, so far as is here pertinent, it denied the new matter alleged by respondent and admitted that it had constructed 15 buildings in the same area at the same time. The Special Term ruled on the objections and point of law and held the petition sufficient on its face. The Special Term dismissed the petition upon the merits, however, on the grounds that the regulation issued by respondent had the force and effect of law; that it applies to the property herein; and that the record establishes that petitioner’s plot can be supplied with public water within the cost fixed by respondent’s regulation. In our opinion, the pleadings raise issues of fact which should be resolved by a trial (¡Civ. Prac. Act, § 1295), before any determination is made as to the questions of law. Nolan, P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.  