Noeth v. Valentine

247 A.D. 807

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1936
• Status: Published

Opinion

The petitioners own and operate a grill room and dance hall in the residence section of Ridgewood, in the borough. of Queens. Complaints that the operation of the dance hall constituted a nuisance and that the noise emanating therefrom disturbed the rest and repose of those residing in its vicinity were received by the police department. When an application was made for a renewal of the license in 1935, the police department, after hearings to determine the merits of the application, refused to issue a renewal. The petitioners instituted a mandamus proceeding to compel its issuance. An alternative order was granted. The issue of fact raised by the return was tried without a jury, and the court issued the peremptory mandamus order from which this appeal is taken. Peremptory mandamus order reversed on the law and the facts, with costs, and the application denied, with ten dollars costs and disbursements. Appeal from alternative mandamus order dismissed. While there was evidence in support of the claim that the dance hall was conducted without noise, there was abundant evidence to the contrary. In the circumstances it cannot be said that the action of the police commissioner was either capricious or unreasonable, and his decision should not be disturbed. (Matter of Agoglia v. Mulrooney, 259 N. Y. 462.) Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.