158 N.Y.S. 324 | N.Y. Sup. Ct. | 1916
The action is to abate a private nuisance. The plaintiff, since October 1, 1910, has been the lessee and occupant of an apartment on the ground floor of the seven-story brick and stone apartment house known as the ‘ ‘ Wilmington, ’ ’ situate at the southeast corner of Broadway and Ninety-seventh street, in the borough of Manhattan, New York city. The evidence shows that the “ Wilmington ” is a high class apartment house, with separate bathrooms, kitchen and rooms for each apartment, which are separate from each other, and that it is situated in a residential neighborhood composed of high class apartments in the built-up portion of Manhattan island. The plaintiff’s present lease for said apartment was made in September, 1915, and expires on September 30, 1916, and the plaintiff is paying the same rent as he paid before the nuisance complained of was created. The ground floor and a part of the basement of that portion of the apartment house in question fronting on Broadway is used for business purposes and, among other things, for a restaurant. The complaint alleges, and the answer does not deny, that the restaurant is now operated by the defendant and has been operated by him and his predecessors since March, 1915, when it was installed. The restaurant adjoins plaintiff’s apartment, now consisting of two rooms and a bath, the bedroom thereof being immediately adjacent to the walls separating it from the restaurant. Such walls are an ordinary lath and plaster studded wall about six inches in thickness and a fireproof block partition wall about five inches in
Ordered accordingly.