In an action to enjoin defendant from continuing a nonconforming use until a permit has been issued, pursuant to the Zoning Ordinance of the plaintiff town, in which defendant pleads a counterclaim for a declaratory judgment that such Zoning Ordinance is unconstitutional and void, the town appeals from an order of the Supreme Court, Westchester County, dated October 3, 1960, denying its motion for summary judgment. Order affirmed, with $10 costs and disbursements. The new Zoning Ordinance, effective August 29, 1960, should be pleaded in an amended complaint, and defendant should be permitted to interpose its defenses and counterclaims thereto in its answer to such complaint. Under the circumstances here, the application of the legal principles involved should await determination upon a trial of the factual issues raised by the amended pleadings. If so advised, plaintiff may serve an amended complaint within 30 days after entry of the order hereon. Nolan, P. J., Beldock, Kleinfeld, Christ and Pette, JJ., concur. [24 Misc 2d 673.]