In a proceeding under article 78 of the Civil Practice Act, to review the determination of respondent, Commissioner of Mental Hygiene, to take certain lands in Suffolk County for the purpose of erecting and maintaining thereon a State school for retarded children, pursuant to the provisions of section 46 of the Mental Hygiene Law, petitioners appeal from an order of the Supreme Court, Suffolk County, dated October 6, 1960, granting the cross motion of respondent to dismiss the petition for insufficiency. Order affirmed, without costs. Since the action by respondent was legislative in character (Rindge Co. v. Los Angeles, 262 U. S. 700, 709; Bragg v. Weaver, 251 U. S. 57, 58; Matter of City of New York [Ely Ave.], 217 N. Y. 45, 57), his action may not be reviewed by a *506proceeding under article 78 of the Civil Practice Act (Matter of Neddo v. Schrade, 270 N. Y. 97; Matter of Long Is. R. R. Co. v. Sylan, 240 N. Y. 199; People ex rel. Trustees of Vil. of Jamaica v. Board of Supervisors of Queens County, 131 N. Y. 468; Matter of Schulman v. McMorran, 9 A D 2d 1007). Nolan, P. J., Beldock, Ughetta, Christ and Brennan, JJ.. concur. [25 Misc 2d 1062.]