
    Peter N. Peters and Others, on Behalf of Themselves and All Other Residents or Property Owners on Riverside Drive in the Borough of Manhattan, County and City of New York, Similarly Situated, Appellants, v. Robert Moses, as Commissioner of the Department of Parks in the City of New York, and Riverside-Claremont Restaurant, Inc., Respondents.
    
    First Department,
    April 19, 1940.
    
      
      John C. Bruton, Jr., of counsel [Maxwell Stettner, attorney], for the appellants.
    
      Samuel A. Bloom of counsel [Sidney Shemel and H. Broadman Epstein with him on the brief; William C. Chanler, Corporation Counsel], for the respondent Moses.
    
      Emil Rogers of counsel [Eugene Newman with him, on the brief], for the respondent Riverside-Claremont Restaurant, Inc.
    
      
      Modfg. and affg. 171 Misc. 441.
    
   Per Curiam.

The opinion of Special Term indicates that it found from the evidence, supplemented by the court’s personal observations made pursuant to the stipulation of the parties, that there were noises incidental to the playing of outdoor music by defendant corporation’s orchestra which disturbed the peace of the neighborhood. This finding is amply supported by the evidence. Under the circumstances we think that the playing of the outdoor orchestra should be prohibited after eleven o’clock in the evening. The provisions of the Administrative Code of the City of New York (§ 435-5.0) indicate a public policy prohibiting any such noises after that hour which disturb the quiet of residents. However, plaintiffs in the present case do not object to the music’s continuing until twelve o’clock on Saturday evenings and evenings preceding holidays. Accordingly, we direct the modification of subdivision one of the judgment appealed from by changing the provisions therein concerning the hour on and after which the outdoor orchestra is enjoined from playing to eleven p. M. on all days other than Saturdays and holidays, on which latter days it may continue to twelve midnight. As so modified, the judgment should be affirmed, with costs to appellants.

Present — Martin, P. J., Glennon, Untekmyer, Cohn and Callahan, JJ.

Judgment unanimously modified as indicated in opinion, and, as so modified, affirmed, with costs to the appellants. Settle order on notice.  