Opinion
March 31, 1947.
Judgment of the County Court, Queens County, entered on the verdict of a jury, finding the defendant guilty of violation of section 1532 of the Penal Law (maintaining a public nuisance), as defined in section 1530, reversed on the law, the indictment dismissed, and the fine remitted. The facts, insofar as they are to the effect that appellant's plant causes noises which are annoying to the comfort and repose of a considerable number of persons, are affirmed. Appeal from orders dismissed. The record discloses that the appellant operates a brass foundry in an industrial area in Queens County; that it operates until 3:00 A.M.; and that the noises of its presses are seriously annoying and disturbing to nearby residents, particularly during the usual sleeping hours and until 3:00 A.M. The business is lawful, and for that reason its operation may not be held to constitute a public nuisance unless it appears that it is being operated improperly, negligently or, in some other manner, unlawfully. ( People v. Brooklyn Queens Transit Corp., 283 N.Y. 484, 490; People v. Vandewater, 250 N.Y. 83, 89; People v. Dayton Cleaners Dyers Corp., 251 App. Div. 332.) There is no evidence in this record of unlawful operation. The only evidence in the case on the subject tends to establish operation in conformity with usual custom and practices, and possibly in accordance with the best known practices. Effect must also be given to the fact that the area is predominantly industrial, and that appellant's plant was in operation prior to the construction and occupation of the houses of the complaining witnesses. Hagarty, Acting P.J., Carswell, Johnston, Adel and Sneed, JJ., concur.