100 N.Y.S. 777 | N.Y. App. Div. | 1906
The plaintiff was a tenant, occupying part of the building Ro. 1324 Broadway, in the city of Rew York, where for twenty years he carried on the business of stationer and bookseller. The defendant, a corporation, engaged in business in the city of Rew York, maintained upon this building, with the permission of the landlord, the defendant Lawrence, a wooden structure, showboafd or sign, at the top of the front of the building and under the cornice, which sign extended the entire length of the frontage of the building and .of an adjoining building. It is described as being supported by iron cleats, brackets or stanchions, projecting from the front of the building two feet at the bottom of the sign and two and one-half feet at the top. This sign or showboard, upon which are displayed electric lights beneath a metallic hood which illuminated it, is alleged
It was admitted in the court below and again on the argument of the cause at the bar of this court that the structure of which the plaintiff complains constitutes a public and a private nuisance, and the learned justice who' decided the cause,at the Special Term, in his opinion, declares that the showboard and its appurtenances overhanging the sidewalk is an unlawful structure and constitutes a public nuisance. It is not contended by the defendant that the court is without jurisdiction to enjoin the continuance of a public nuisance at the suit of a private party injured thereby, but the learned justice in the court below held as matter of fact that the plaintiff had sustained no damage by reason of the existence of that which is admitted to be a nuisance, and that he was not entitled to the relief sought, because a court of equity will'not grant injunctive relief to a plaintiff in such an action unless he has suffered financial loss or other special injury in consequence of the maintenance of a nuisance.
We think the evidence here of special damage by interference with the plaintiff’s business, as well as by direct pecuniary loss, was quite sufficient to "authorize the issuance of .the injunction prayed for in 'the complaint, and that, therefore, the judgment,should be reversed and a new trial ordered, with costs to appellant to abide the event.
Ingraham, Laughlin, Clarke and Houghton, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide" event.