| N.Y. App. Div. | Nov 6, 1942
We are of the opinion that the findings of fact, that a nuisance existed upon defendant’s premises by reason of noise emanating from defendant’s compressors and condensers, that the noise heard in the house occupied by plaintiffs is the pulsation of the discharge of the compressors and condensers and that the condition of plaintiff, Cora Garnham, was caused by the nuisance maintained by defendant through the faulty installation of its compressors and condensers, are against the weight of evidence. The defendant called one Saljoel, who had resided in a double house two lots west of plaintiffs’ residence for one year preceding the trial, to testify as to the noise emanating from defendant’s plant. On plaintiffs’ objection, this witness was not permitted to testify, upon the ground that the proof was limited to conditions existing prior to the commencement of the actions. This was prejudicial error. We conclude that the interests of justice will be best served by a new trial of all the issues. All concur. (The judgment is for plaintiff in an action to abate a nuisance.) Present — ■ Crosby, P. J., Taylor, Dowling, Harris and McCum, JJ.