
    In the Matter of the Application of Kingsway Plumbing Supply Co., Inc., Petitioner, for an Order Pursuant to Article 78 of the Civil Practice Act Reviewing a Determination of Eugene Sherk and Others, Constituting the Board of Appeals of the Village of Floral Park, Respondents.
    Second Department,
    December 4, 1939.
    
      Alfred J. Loew [Laurence E. Degner with him on the brief], for the petitioner.
    
      Harold W. Weidner, for the respondents.
   Per Curiam.

This is a proceeding to review the determination of the board of appeals of the village of Floral Park and of the village building inspector and the village clerk denying the application of petitioner for a permit to erect an additional building upon its premises. The village authorities denied the permit on the ground that the proposed use of the building sought to be erected would violate the following provisions of section 16 of the local zoning ordinance: First, subdivision 3; also paragraph 2 of said subdivision, items (b), (d), (m) and (o).

In our opinion the proposed use does not violate any of the foregoing provisions of the zoning ordinance. With respect to the alleged violation of subdivision 3, paragraph 2, item (o), the only proof in the record is that the noise created by the use of the existing buildings is disturbing to the objectors. Successfully to invoke this subdivision it was incumbent upon "the objectors or respondents to show (a) that the noise would be so injurious, noxious or harmful to the people in the community that its continuance would undermine their health; and (b) that such harmful noise would result from the proposed use of the building sought to be erected. There was no such proof. The proof in the record indicates the contrary, particularly in the light of the fact that the building sought to be erected will adjoin the main line of the Long Island Railroad and that almost 200 freight and passenger trains pass by the premises daily, each train blowing its whistle as it passes.

The determination of the board of appeals of the village of Floral Park, and the determination of the village clerk and building inspector denying the permit, should be annulled, with fifty dollars costs and disbursements to petitioner, the application of the petitioner granted, and the building inspector and village clerk directed to issue a permit for the proposed use of the building sought to be erected.

Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ., concur.

Determination of the board of appeals of the village of Floral Park and the determination of the village clerk and building inspector denying permit annulled, with fifty dollars costs and disbursements to petitioner, application of the petitioner granted, and the building inspector and village clerk are directed to issue a permit for the proposed use of the building sought to be erected.-  