(dissenting). It appears from the record that Special Term in its decision was relying upon the alleged building ordinance attached to the town’s complaint in Action No. 1 as allegedly amended pursuant to the various exhibits in the record. It is sufficient to note that the records do not clearly establish exactly what the duly enacted ordinance of the Town of Cairo was, as the same might affect the instant proceeding. However, it does not .appear that a Town Board may delegate to its Planning Board the powers and duties of a Building Inspector as set forth in section 138 of the Town Law.
In any event, the record establishes that the building ordinance, as enacted by the town, was solely an effort to create a building code pursuant to subdivision 1 of section 130 of the Town Law. Thereafter, the town adopted the ¡State Building Code. .Subdivision 1 of section 386 of the Executive Law provides that, upon the adoption of the said .State Building Construction Code, municipalities may not in any way supersede or make more restrictive the provisions of the said code. The considerations attempted to be undertaken by the Town Board in denying this application are plainly beyond a building code and would not appear to be permissible pursuant to the said State Building Construction Code. It is apparent that the Town Board is attempting to establish a plan of ad hoe zoning without formulating any comprehensive plan for zoning within the town. Upon the entire record, the action of the board was arbitrary and capricious.
For the foregoing reasons, the judgment of Special Term which directed the town to grant respondent’s application for a *572building permit provided the application complies with the State Building Code, and the order denying the town’s request for injunctive relief were correct and should he affirmed.
Main and Reynolds, JJ., concur with Sweeney, J.; Grebnblott, J., concurs in a separate opinion; Heblihy, P. J., dissents and votes to affirm in an opinion.
Order in Action No. 1 denying appellant’s motion for a preliminary injunction reversed, on the law and the facts, and motion granted, with costs; judgment in Action No. 2 granting respondent Pair Grounds’ petition in the article 78 proceeding reversed, on the law, and summary judgment dismissing the petition granted in favor of appellant, with costs.