111 N.J. Eq. 84 | N.J. Ct. of Ch. | 1932
The above-stated causes were by consent of counsel for the respective parties heard and argued together. The *85 nuisance which complainants allege the defendants are responsible for the creation and maintenance of is attributable to noise and vibration. Whatever grounds of complaint the complainants may consider they have in such respect may only be chargeable, on the proofs herein, against the defendant Stetson Shirt Company. Complainants' allegations of nuisance are not substantiated by such satisfactory proof as to warrant the court to grant the relief of injunction, and assessment of damages, as prayed, and I have therefore determined that the bills of complaint in both causes should be dismissed. I have determined also that the counter-claim of the defendant Jules M. Levinsohn in the Damadio suit should be dismissed. I will advise decrees accordingly. In cases such as sub judice no injunction will be granted to restrain the operation of a business which is lawful in itself unless a clear case is established by satisfactory proof; and complainants' proofs as to the grievance alleged must not be contradictory, but convincing. Stohf v. Passaic PieceDye Works,
The grievance alleged by the complainants Damadio against *90
the defendant Levinsohn as to the driveway adjoining the demised premises of Damadio, is not substantiated. All that said complainants are entitled to under their lease is the use of said driveway auxiliary to the grocery business conducted by them upon their demised premises. Said complainants are not entitled to the exclusive use of said driveway, which leads to a structure erected at the rear of the premises owned by the defendant Levinsohn, of which the demised premises of the complainants Damadio form a part. Furthermore, the proofs herein manifest that the grievance alleged in the bill of said complainants with respect to said driveway was remedied quite some time before the hearing of the cause. There is proof in the case sub judice
that the complainants Damadio made use of said driveway as a storage place for commodities kept by them for the purpose of sale in their grocery business. The driveway in question may not be regarded as a storage place. It is a place which has been used for ingress and egress by vehicles and pedestrians to and from the rear of the Levinsohn premises. The defendant Levinsohn rented a portion of said driveway to an expressman for office purposes, and such use was made thereof for a considerable period of time, yet the complainants Damadio made no objection thereto. The alleged grievance of the complainants Damadio as to the driveway in question, for which injunctive relief is sought, is untenable. Counsel for the respective complainants urged in argument that his clients were entitled to damages against defendant Levinsohn, the lessor of the premises demised to them respectively, because of alleged violation of a covenant of his clients' lease relating to quiet enjoyment, c. For violation of such a covenant complainants will be relegated to a court of law which is the proper forum for the determination of such questions. In view of what I have stated hereinabove as to the driveway in question, I deem it unnecessary to consider the counter-claim of the defendant Levinsohn for a reformation of the Damadio lease, and I make no determination herein with respect thereto. With respect to the injunctive relief prayed by complainants in the matter sub judice, I have in mind the *91
oft-repeated admonition of Judge Baldwin, referred to inCitizens Coach Co. v. Camden Horse Railroad Co.,