Longo, J.
In these eases, the plaintiffs, Bruce R. Carpenter et al., have appealed from separate judgments of the Superior Court and the Court of Common Pleas sustaining the pleas in abatement by the defendants in each ease. The plaintiffs’ appeals arise out of a common nucleus of facts and are sufficiently similar to permit their disposition in one opinion.
No finding was requested or draft finding filed, but the facts necessary for a consideration of the issues raised are uncontroverted as summarized in [584]*584the briefs. On August 19,1975, Robert S. Jones and Kenneth B. Tate, the defendants in both cases (hereinafter the defendants), submitted to the defendant planning and zoning commission of the town of Stonington, a defendant in the first case only (hereinafter the commission), an application for approval of a plan of subdivision of a tract of land in Stonington, in accordance with § 8-26 of the General Statutes. On October 21, 1975, the commission approved the application for subdivision, subject to the approval of the Stonington highway superintendent and the posting of a bond. No further action was taken by the commission.
Because of the commission’s inaction, the defendant Jones requested the commission to issue a certificate of approval of subdivision, pursuant to Gen7 eral Statutes § 8-26. When the demand was refused, Jones brought an action against the commission, claiming a writ of mandamus1 compelling the commission to issue a certificate of approval. In that case a stipulated judgment, approved by the Superior Court, stated that the subdivision was approved by reason of the commission’s failure to [585]*585act within the sixty-five day period provided in § 8-26. The conrt ordered the issuance of the certificate on January 28, 1976.2
On June 1, 1976, the plaintiffs in Carpenter v. Planning & Zoning Commission appealed to the Court of Common Pleas, alleging that, notwithstanding a contrary finding by the Superior Court in the mandamus action, the commission had decided to approve the defendants’ subdivision at its meeting on October 21, 1975. The plaintiffs further alleged that (1) the commission acted arbitrarily and illegally; (2) the commission failed to publish notice of its decision; and (3) the plaintiffs were aggrieved by the action of the commission.
On June 4, 1976, the plaintiffs in Carpenter v. Jones instituted an action in the Superior Court seeking injunctive relief against the subdivision of the defendants’ land, claiming that the decision of the commission was void by reason of the commission’s failure to publish the notice of its decision as required by General Statutes § 8-26.
[586]*586A plea in abatement was filed by. the individual defendants and by the commission in the first case and a similar plea was filed by the individual defendants in the second case, claiming that the respective courts lacked jurisdiction (1) to hear the appeal (Carpenter v. Planning & Zoning Commission) or (2) to grant injunctive relief (Carpenter v. Jones) because the plaintiffs had failed to prosecute an appeal within the time period prescribed by General Statutes § 8-28.3 More particularly, the defendants alleged that the commission had failed to act on the subdivision plan within sixty-five days as required by § 8-26 and that, as a result, “inferred approval” had followed.4 The sole remedy from such an inferred approval, the defendants asserted, was an appeal filed within twenty days after the expiration of the sixty-five day period provided in § 8-26 and, the plaintiffs having failed to appeal within that period, the appeal was abatable for lack of jurisdiction. The plaintiffs, in both eases, filed answers to the pleas in abatement in which they denied each of the defendants’ allegations.
On September 30, 1976, the Court of Common Pleas (Allen, J.), without taking evidence, sustained the pleas in abatement before it on the ground that the statutory appeal period had expired before the [587]*587filing of the appeal by the plaintiffs. On April 12, 1977, the Superior Court (Santaniello, J.), without taking evidence, sustained the plea in abatement before it on the ground that the plaintiffs’ sole remedy from the actions of the commission was by appeal to the Court of Common Pleas. From the judgments rendered on the pleas in abatement sustained the plaintiffs have appealed to this court, claiming that both trial courts erred in concluding (1) that the commission “failed to act” upon the subdivision application within the meaning of General Statutes § 8-26 and (2) that the plaintiffs’ sole remedy was an appeal to the Court of Common Pleas.
When a party wishes to plead to the jurisdiction of the court, he may do so either by a motion to erase or a plea in abatement. While a motion to erase admits all well pleaded facts and must be decided upon the face of the record alone; Tuccio v. Zehrung, 164 Conn. 231, 232, 319 A.2d 406 (1973); Brown v. Cato, 147 Conn. 418, 419,162 A.2d 175 (1960); a plea in abatement is the proper pleading when the ground of abatement is want of jurisdiction and the facts relied upon do not appear in the record. Practice Book, 1963, §93;5 Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 463, 378 A.2d 547 (1977); Kohn Display & Woodworking Co. v. Paragon Paint & Varnish Corporation, 166 Conn. 446, 448, 352 A.2d 301 (1974). A plea in abatement requires a responsive pleading by the opposing party, but when facts alleged in the plea are put in issue by the responsive pleading, the burden of [588]*588proving the facts alleged is upon the party making the plea and a failure to put on such evidence requires the court to overrule the plea. Murphy v. Dantowitz, 142 Conn. 320, 324, 114 A.2d 194 (1955).
As may appear from the recitation of faets set forth earlier in this opinion, the litigation of the present cases pursued a somewhat complicated course. One fundamental controversy, however, underlies both appeals. The plaintiffs have claimed throughout that the commission did not “fail to act” upon the defendants’ plan* of subdivision; that at the commission’s meeting on October 21, 1975, the commission illegally approved the defendants’ application, as that approval was subject to the posting of a bond and the approval of the highway superintendent, which conditions never materialized; and, finally, that the commission failed to publish notice of its decision as required by law and thus no appeal period ever commenced. The defendants have responded throughout, by way of pleas in abatement in both eases, that the commission’s only authority under General Statutes § 8-26 is to “approve, modify and approve, or disapprove any subdivision . . . application . . . within sixty-five days after the submission thereof”; that the commission failed to take one of the enumerated actions within sixty-five days after the submission of the plan on August 19, 1975; that such inaction resulted in an inferred approval of the plan; and that the statutory right to take an appeal within twenty days of the expiration of the sixty-five day period following such an inferred approval had expired prior to the plaintiffs’ appeal on June 1,1976.
In order for the Court of Common Pleas, in Carpenter v.
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Longo, J.
In these eases, the plaintiffs, Bruce R. Carpenter et al., have appealed from separate judgments of the Superior Court and the Court of Common Pleas sustaining the pleas in abatement by the defendants in each ease. The plaintiffs’ appeals arise out of a common nucleus of facts and are sufficiently similar to permit their disposition in one opinion.
No finding was requested or draft finding filed, but the facts necessary for a consideration of the issues raised are uncontroverted as summarized in [584]*584the briefs. On August 19,1975, Robert S. Jones and Kenneth B. Tate, the defendants in both cases (hereinafter the defendants), submitted to the defendant planning and zoning commission of the town of Stonington, a defendant in the first case only (hereinafter the commission), an application for approval of a plan of subdivision of a tract of land in Stonington, in accordance with § 8-26 of the General Statutes. On October 21, 1975, the commission approved the application for subdivision, subject to the approval of the Stonington highway superintendent and the posting of a bond. No further action was taken by the commission.
Because of the commission’s inaction, the defendant Jones requested the commission to issue a certificate of approval of subdivision, pursuant to Gen7 eral Statutes § 8-26. When the demand was refused, Jones brought an action against the commission, claiming a writ of mandamus1 compelling the commission to issue a certificate of approval. In that case a stipulated judgment, approved by the Superior Court, stated that the subdivision was approved by reason of the commission’s failure to [585]*585act within the sixty-five day period provided in § 8-26. The conrt ordered the issuance of the certificate on January 28, 1976.2
On June 1, 1976, the plaintiffs in Carpenter v. Planning & Zoning Commission appealed to the Court of Common Pleas, alleging that, notwithstanding a contrary finding by the Superior Court in the mandamus action, the commission had decided to approve the defendants’ subdivision at its meeting on October 21, 1975. The plaintiffs further alleged that (1) the commission acted arbitrarily and illegally; (2) the commission failed to publish notice of its decision; and (3) the plaintiffs were aggrieved by the action of the commission.
On June 4, 1976, the plaintiffs in Carpenter v. Jones instituted an action in the Superior Court seeking injunctive relief against the subdivision of the defendants’ land, claiming that the decision of the commission was void by reason of the commission’s failure to publish the notice of its decision as required by General Statutes § 8-26.
[586]*586A plea in abatement was filed by. the individual defendants and by the commission in the first case and a similar plea was filed by the individual defendants in the second case, claiming that the respective courts lacked jurisdiction (1) to hear the appeal (Carpenter v. Planning & Zoning Commission) or (2) to grant injunctive relief (Carpenter v. Jones) because the plaintiffs had failed to prosecute an appeal within the time period prescribed by General Statutes § 8-28.3 More particularly, the defendants alleged that the commission had failed to act on the subdivision plan within sixty-five days as required by § 8-26 and that, as a result, “inferred approval” had followed.4 The sole remedy from such an inferred approval, the defendants asserted, was an appeal filed within twenty days after the expiration of the sixty-five day period provided in § 8-26 and, the plaintiffs having failed to appeal within that period, the appeal was abatable for lack of jurisdiction. The plaintiffs, in both eases, filed answers to the pleas in abatement in which they denied each of the defendants’ allegations.
On September 30, 1976, the Court of Common Pleas (Allen, J.), without taking evidence, sustained the pleas in abatement before it on the ground that the statutory appeal period had expired before the [587]*587filing of the appeal by the plaintiffs. On April 12, 1977, the Superior Court (Santaniello, J.), without taking evidence, sustained the plea in abatement before it on the ground that the plaintiffs’ sole remedy from the actions of the commission was by appeal to the Court of Common Pleas. From the judgments rendered on the pleas in abatement sustained the plaintiffs have appealed to this court, claiming that both trial courts erred in concluding (1) that the commission “failed to act” upon the subdivision application within the meaning of General Statutes § 8-26 and (2) that the plaintiffs’ sole remedy was an appeal to the Court of Common Pleas.
When a party wishes to plead to the jurisdiction of the court, he may do so either by a motion to erase or a plea in abatement. While a motion to erase admits all well pleaded facts and must be decided upon the face of the record alone; Tuccio v. Zehrung, 164 Conn. 231, 232, 319 A.2d 406 (1973); Brown v. Cato, 147 Conn. 418, 419,162 A.2d 175 (1960); a plea in abatement is the proper pleading when the ground of abatement is want of jurisdiction and the facts relied upon do not appear in the record. Practice Book, 1963, §93;5 Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 463, 378 A.2d 547 (1977); Kohn Display & Woodworking Co. v. Paragon Paint & Varnish Corporation, 166 Conn. 446, 448, 352 A.2d 301 (1974). A plea in abatement requires a responsive pleading by the opposing party, but when facts alleged in the plea are put in issue by the responsive pleading, the burden of [588]*588proving the facts alleged is upon the party making the plea and a failure to put on such evidence requires the court to overrule the plea. Murphy v. Dantowitz, 142 Conn. 320, 324, 114 A.2d 194 (1955).
As may appear from the recitation of faets set forth earlier in this opinion, the litigation of the present cases pursued a somewhat complicated course. One fundamental controversy, however, underlies both appeals. The plaintiffs have claimed throughout that the commission did not “fail to act” upon the defendants’ plan* of subdivision; that at the commission’s meeting on October 21, 1975, the commission illegally approved the defendants’ application, as that approval was subject to the posting of a bond and the approval of the highway superintendent, which conditions never materialized; and, finally, that the commission failed to publish notice of its decision as required by law and thus no appeal period ever commenced. The defendants have responded throughout, by way of pleas in abatement in both eases, that the commission’s only authority under General Statutes § 8-26 is to “approve, modify and approve, or disapprove any subdivision . . . application . . . within sixty-five days after the submission thereof”; that the commission failed to take one of the enumerated actions within sixty-five days after the submission of the plan on August 19, 1975; that such inaction resulted in an inferred approval of the plan; and that the statutory right to take an appeal within twenty days of the expiration of the sixty-five day period following such an inferred approval had expired prior to the plaintiffs’ appeal on June 1,1976.
In order for the Court of Common Pleas, in Carpenter v. Planning & Zoning Commission, to sustain [589]*589the defendants’ pleas in abatement, the court had to find, as a matter of either fact or law, that there had been an inferred approval of the subdivision plan by reason of the commission’s failure to act upon the plan within the sixty-five day period set forth in § 8-26, setting in motion a twenty day appeal period thereafter under § 8-28, which the plaintiffs failed to pursue. In Carpenter v. Jones the Superior Court had to find not only the above but also that the plaintiffs’ sole remedy was an appeal under § 8-28 from the inferred approval, not a remedy by way of injunctive relief.
Ordinarily, and particularly in the context of these appeals, a finding is necessary to test the conclusions of the trial court reached on a plea in abatement. Practice Book, 1978, § 3020; Leonard v. Zoning Board of Appeals, 151 Conn. 646, 648, 201 A.2d 466 (1964). No finding was requested or made in this case. “The absence of a finding does not necessarily preclude action by this court. We are, however, limited in our inquiry to the material facts which appear on the record.”6 Robertson v. Robertson, 164 Conn. 140, 142, 318 A.2d 106 (1972); see Zachs v. Public Utilities Commission, 171 Conn. 387, 390, 370 A.2d 984 (1976). The record here consists of the pleadings, the judgment and the trial courts’ memoranda of decision. The courts’ memoranda do not establish facts and cannot take the place of a finding. “We may, however, consult the memo-rand [a] for a better understanding ... of the [590]*590court[s’] decision[s].” Davenport Taxi, Inc. v. State Labor Commissioner, 164 Conn. 233, 235, 319 A.2d 386 (1973).
The fact that both courts adjudged the issues raised by the pleas in abatement for the defendants “means that all material and disputed allegations in the pleadings were found for [them].” Tuite v. Tuite, 150 Conn. 345, 348, 189 A.2d 394 (1963); Williamson’s Appeal, 123 Conn. 424, 427, 196 A. 770 (1937). This includes the defendants’ allegations that “the commission failed to approve, modify and approve, or disapprove the subdivision plan within sixty-five days after its submission on August 19, 1975, as required by the General Statutes”; that “the failure of the commission to act on a subdivision application within sixty-five days after the date of submission is deemed to be an inferred approval thereof”; that “the sole remedy for parties ‘aggrieved’ by such an inferred approval is by appeal . . . within twenty days of the expiration of the sixty-five day period”; and that “the plaintiffs herein failed to file such an appeal.” Since the trial courts, by their decisions, found these facts for the defendants, our inquiry is limited to a determination of whether the trial courts correctly applied the law relative to pleas in abatement to the above-found facts. Zachs v. Public Utilities Commission, supra, 391; Mendrochowicz v. Wolfe, 139 Conn. 506, 510, 95 A.2d 260 (1953).
A review of the memorandum of decision in Carpenter v. Planning & Zoning Commission reveals that the Court of Common Pleas sustained the defendants’ pleas in abatement on three grounds. First, the court, with the consent of all of the parties, took judicial notice of the minutes of the [591]*591October 21, 1975 meeting of the commission. Those minutes indicated that the commission “approved” the defendants’ subdivision plan, “subject to posting a bond and approval of the highway superintendent.” Second, the court took judicial notice of the file in Carpenter v. Jones, Court of Common Pleas, New London County, No. 27048, April 21, 1976. Specifically, the court judicially noticed Judge N. Levine’s memorandum of decision on the plea in abatement and motion to erase, wherein he concluded that the present plaintiffs either intentionally or negligently failed to prosecute under General Statutes § 8-28 a timely appeal from the nonaction of the commission. Third, the trial court took judicial notice of the findings of Judge J. Shea in the previous mandamus action filed by the defendants; Jones v. Ricker, 172 Conn. 572, 375 A.2d 1034 (1977); and the stipulated judgment in that case stating that the subdivision was approved by reason of the commission’s failure to act. On the basis of those facts not apparent “on the face of the record”; Practice Book, 1978, §3020; the defendants argued, and the court agreed, that the action taken by the commission in conditionally approving the subdivision plan was not an action enumerated in § 8-26, and that this action thus constituted a “failure to act” within the meaning of that statute. We agree.
Where, as here, the defendants denominated their pleading a plea in abatement specifically to allow the court to consider matters not apparent on the face of the record, it was well within the power of the trial court to take judicial notice of court files of other suits between the same parties and of the minutes of the commission’s meeting. Nichols v. Nichols, 126 Conn. 614, 622, 13 A.2d 591 (1940); see Guerriero v. Galasso, 144 Conn. 600, 605, 136 [592]*592A.2d 497 (1957); Davis v. Maislen, 116 Conn. 375, 383-84, 165 A. 451 (1933); McCleave v. Flanagan Co., 115 Conn. 36, 38, 160 A. 305 (1932); see 1 Stephenson, Conn. Civ. Proc. (2d Ed.) § 106. Those files and the minutes of the meeting indicated that the commission approved, but only conditionally, the defendants’ subdivision application. Reviewing the court files and the minutes, the Court of Common Pleas concluded that a “conditional approval” is not one of the possible courses of action, i.e., “approval, modification and approval, or disapproval,” enumerated in General Statutes § 8-26, and thus, such conditional approval constituted a “failure to act” within that statute. The trial court was correct in this interpretation of § 8-26.
Nothing in the subdivision approval statute, § 8-26, allows for the imposition of conditions upon the planning and zoning commission’s approval of a subdivision plan; the statute merely provides for the commission to “approve, modify and approve, or disapprove” a subdivision application. Neither are we confronted with any local regulation of the town of Stonington which would authorize the imposition of conditions on a subdivision approval. We have held, albeit in a different context, that commission action which is dependent for its proper functioning on action by other agencies over which the zoning commission has no control cannot be sustained unless the necessary action appears to be a probability. Stiles v. Town Council, 159 Conn. 212, 221, 268 A.2d 395 (1970). Similarly, where, as here, the approval is subject to a condition over which neither the commission nor the subdivision applicant has control, such action is not an “approval” within § 8-26. We hold that where a commission makes the approval of a plan of subdivision subject to a con[593]*593dition, the fulfillment of which is within the control of neither the commission nor the applicant, such as approval by a coordinate municipal agency, the commission has “failed to act” within the intendment of General Statutes §§ 8-26 and 8-28, unless the coordinate agency approval appears to be a reasonable probability.7 Stiles v. Town Council, supra; Luery v. Zoning Board, 150 Conn. 136, 145, 187 A.2d 247 (1962). As there is no indication in the record that the approval of the highway superintendent was a reasonable probability, the commission did not properly “approve, modify and approve, or disapprove” the defendants’ subdivision application, and, thus, an “inferred approval” under § 8-26 took place sixty-five days after the date of the submission of the application. Since the plaintiffs’ twenty-day appeal period had expired at the time their appeal was filed, the trial court did not err in determining that it lacked jurisdiction.
In reaching this conclusion, we note that in Lurie v. Planning & Zoning Commission, 160 Conn. 295, 278 A.2d 799 (1971), we stated that the rule enunci[594]*594ated in Stiles did not strictly apply to instances of “exceptions and special nse permits,” and further stated (p. 307) that “where an exception or a special permit is granted and the grant is otherwise valid except that it is made reasonably conditional on favorable action by another agency or agencies over which the zoning authority has no control, its issuance will not be held invalid solely because of the existence of any such condition.” (Emphasis added.) Lurie, however, is inapplicable to the present case for a number of reasons. First, in Lurie, we construed a statute, General Statutes § 8-2, which expressly provided that the commission was authorized to impose conditions as a prerequisite to certain uses of lands. No such express statutory authority is found in § 8-26 or § 8-28. Second, in Lurie, the town of Westport had enacted zoning regulations, pursuant to the authority of § 8-2, which provided for design development districts and for their use upon the issuance of a special permit “subject to appropriate conditions and safeguards.” Id., p. 299. No such local regulations permitting the imposition of conditions are in issue in the present case. Finally, the rule in Lurie is appropriately applicable in cases involving the conditional issuance of special permits for design development districts resulting in “floating zones.” In this context, there exists statutory authority under § 8-2 for the imposition of conditions on the allowance of a special land use, as indicated by the 1959 amendment to § 8-2; Public Acts 1959, No. 614, § 2; broadening the power of a zoning commission by authorizing conditional issuance of special permits to allow for future, cooperative municipal agency action in the development of the “floating zone.” See Summ v. Zoning Commission, 150 Conn. 79, [595]*59586, 186 A.2d 160 (1962). No such legislative history or intent authorizing the imposition of conditions is found in General Statutes § 8-26.
We are of the view that the general rule against “conditional” commission action enunciated in Stiles controls the present case. The rule formulated in Lurie is an exception to Stiles and has no proper application in a case of subdivision approval.8
Our reading of § 8-26 in the above manner is consonant with the intent underlying this statute and with the interpretation given by other courts to similar statutes. First, § 8-26 provides for publication of notice of a commission's decision in the following manner: “Such notice shall be a simple statement that such application was approved, modified and approved, or disapproved, together with the date of such action.” The wording of this sentence is particularly important and reinforces the obvious legislative intention that the only “decision” of the commission which the statute contemplated was “approval, modification and approval, or disapproval.” A publication of notice of any other “deei[596]*596sion” by the commission would not comport with the language of the statute. We reject the plaintiffs’ contention that the statute was designed to create an inferred approval only where the commission is silent upon the submission of a subdivision plan. Such a reading would render nugatory the legislative intent to have published a notice of one of the commission’s actions enumerated in § 8-26. The statutory requirement of publication of notice is a matter of substance and “of the essence of the thing to be accomplished, not a matter of mere procedure or convenience”; Akin v. Norwalk, 168 Conn. 68, 74, 301 A.2d 258 (1972); and should be strictly construed.
Moreover, many courts have held, upon reviewing statutes similar to General Statutes §§ 8-26 and 8-28, that where, as here, a condition is imposed not authorized by the particular statute, the condition may not stand. Wine v. Council of City of Los Angeles, 177 Cal. App. 2d 157, 2 Cal. Rptr. 94 (1960); State ex rel. Strother v. Chase, 42 Mo. App. 343 (1890); Midtown Properties, Inc. v. Township of Madison, 68 N.J. Super. 197, 172 A.2d 40 (1961). This view is also shared by prominent commentators on the law of zoning and planning. See, e.g., 4 Anderson, American Law of Zoning (2d Ed.) § 23.24, p. 105; 2 Yokley, Zoning Law & Practice (3d Ed.) § 12-7, p. 49.
This rule is particularly appropriate in cases where the condition imposed cannot be fulfilled by the action of the applicant, but must wait for an undetermined time for the approval of a coordinate municipal agency. The legislative purpose behind General Statutes §§ 8-26 and 8-28, to secure, in the public interest, by means of rather brief appeal [597]*597time periods, a speedy determination of the issues involved; Carbone v. Zoning Board of Appeals, 126 Conn. 602, 607, 13 A.2d 462 (1940); will best be facilitated if subdivision applicants know with certainty that a definite course of statutory action has been taken by a commission, setting in motion clear avenues of appeal. Cf. Daly v. Board of Police Commissioners, 133 Conn. 716, 719, 54 A.2d 501 (1947). In sum, we hold that an “approval” subject to a condition, the fulfillment of which is not within the control of the applicant, or in which an approval by a coordinate agency is not shown to be a reasonable probability, is not an “approval” within § 8-26 of the General Statutes, and such an approval is thus a “failure to act”9 within the meaning of that statute.10
[598]*598In view of onr discussion thus far, little remains to be said concerning the appeal in Carpenter v. Jones, in which the plaintiffs sought equitable relief in the form of an injunction restraining the defendants from subdividing their land. The Superior Court sustained the defendants’ plea in abatement on the ground that the plaintiffs’ sole remedy from the actions of the commission was by appeal under G-eneral Statutes § 8-28. In sustaining the plea in abatement, the court took into account the various court files mentioned earlier in this opinion, and determined that an inferred approval of the subdivision application had taken place, setting in motion an appeal period which the plaintiffs failed to pursue; thus, injunctive relief was barred. We agree.
We have frequently stated that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test. Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483 (1963); State Water Commission v. Norwich, 141 Conn. 442, 447, 107 A.2d 270 (1954); McNish v. American Brass Co., 139 Conn. 44, 53, 89 A.2d 566 (1952), cert. denied, 344 U.S. 913, 73 S. Ct. 336, 97 L. Ed. 704 (1953); cf. Connecticut Light & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 357, 377 A.2d 1099 (1977); Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 410, 279 A.2d 540 (1971). The only relevant exception to this rule is where the administrative action is void. Smith v. F. W. Woolworth Co., 142 Conn. 88, 93, 111 A.2d 552 (1955). As we have rejected the plaintiffs’ argument that the commission’s action was void and have held that it was a “failure to act,” the Smith [599]*599case is inapposite. We are of the opinion that the Superior Court did not err in sustaining the defendants’ plea in abatement; a failure to pursue a statutory remedy of appeal “cannot be the cornerstone of an action in equity.” Boucher Agency, Inc. v. Zimmer, supra, 410.
There is no error.
In this opinion Cotter, C. J., Loiselle and Peters, Js., concur red.