In this proceeding pursuant to CPLR article 78 to review respondent’s determination dismissing him from his position as Lieutenant in the Suffolk County Police Department, petitioner appeals from a judgment of the Supreme Court, Suffolk County, dated November 23, 1966, which dismissed the petition. Judgment reversed, on the law, without costs, and *700proceeding remitted to the Special Term for further proceedings consistent herewith. No questions of fact have been considered. On the return day of the proceeding, respondent cross-moved to dismiss the petition as insufficient in law (CPLR 7804, subd. [f]). It is clear on this record that this cross motion was not decided by Special Term and that, instead, Special Term dismissed the petition on the merits on the basis of a summary determination of issues of fact contained in the hearing minutes which were not in the record before the court (see People v. Alfonso, 6 N Y 2d 225, 227-228; McKinney’s Cons. Laws of N. Y., Book 7B, Practice Commentary to CPLR 2220). This procedure was unauthorized (Matter of Caruso v. Incorporated Vil. of Sloatsburg, 28 A D 2d 679). The cross motion to dismiss for legal insufficiency should be decided and, if denied, respondent should be permitted to file his answer together with' affidavits and written proof as provided by. CPLR 7804 (Matter of Caruso, supra). Beldock, P. J., Christ, Brennan, Hopkins and Benjamin, JJ., concur.