154 N.Y.S. 96 | N.Y. Sup. Ct. | 1915
The proposed hospital building is to be of gracious design, with modern equipment and directed by a high personnel. Its presence cannot of itself be held to be a nuisance per se. Nor can the coming and going of crippled children in search of care and cure; though undoubtedly pain and distress will sometimes be caused by the sight of suffering to those living nearby. Giving full credence to the sincerity of plaintiff’s fears of consequences, the settled rules of equity preclude relief upon the theory that the erection and maintenance of such an hospital will constitute a private nuisance. Heaton v. Parker, 131 App. Div. 812. Very likely these apprehensions will never be realized, but should an obnoxious or improper use cause the institution to develop into an actual nuisance relief will then be available. At this time, however, plaintiff’s right to an injunction must rest upon the claim of a statutory restriction.
'The contention most vigorously urged by the plaintiff is that this statutory restriction was a property right belonging to the abutting owners; and this because of the fact that in the condemnation proceedings the abutting owners at the time were assessed for the benefit of the improvements thereunder; and that, of this property right, these owners and their successors in title could not be deprived without due compensation. It is therefore urged that the act of 1897, which abolished the restriction without providing for any compensation, was unconstitutional and void.
To so construe the statutory restriction would give
In Donohue v. Keystone Gas Co., 181 N. Y. 313, it was pointed out that an abutting owner would have the right to enforce an easement of ornament as against a private trespasser or wanton wrong-doer, it being “ subject to interference by no one except by the representatives of the public. ’ ’ When, however, the power of the legislature is in question in respect to these easements in an ornamented street the most that can be granted, to such a street over the ordinary street, is something of the characteristic of a public park. Yet in a public park there is no property or right in the abutting owners disabling the legislature from discontinuing it as a park, even though such owners have, upon the faith of its continuance, erected costly residences about it. ' This was held in the case of Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234. Many of the arguments that are pressed in the case at bar are discussed and disposed of in the opinion of Judge Folger, and the following quotation gains special pertinence from the fact that both parties in the present case purchased their properties after the enactment of the repealing act of 1897: “ The city of Brooklyn was not the grantor of the neighboring owner, and did not induce him to buy of it, by a purpose declared in creating this park. Any enhanced value of his property, was an incidental benefit to him, in its greater readiness of sale, at a greater price, and any depreciation in value is an incidental detriment. The same results flow, in greater or less degree, from the
The foregoing disposes of the contention in this case. If, however, there be doubt as to the correctness of that conclusion plaintiff must still fail. For within the literal terms of the restriction, if the repeal thereof was unconstitutional, this hospital would not fall. The proposed occupancy and use of the defendant’s property certainly is not within the uses forbidden by the special enumeration, which extends to twenty-eight different kinds of trades and businesses, each one of which is either inherently dangerous, notoriously offensive or sharply obnoxious to the moral or esthetic senses. ‘The scope of the restriction is probably enlarged by the additional prohibition of “ any other manufactory, trade, business or calling; ” but to in* elude the proposed institution within those -general terms it must be found as a fact, that the use contemplated will not only be a “ business ” but that such business will in some wise be “ dangerous, noxious or offensive to the neighboring inhabitants.” Rowland v. Miller, 139 N. Y. 93; Moller v. Presbyterian Hospital, 65 App. Div. 134. It is to be very strongly doubted whether an institution, of the sort contemplated, can be legally classed as a “ business,” but, if that be so, it cannot be held that it would be a business either “ noxious, dangerous or offensive,” in the reasonable sense to be accorded to those terms, any more than it can be held that the establishment of this hospital would create a common law nuisance. Thus in the
It follows that there must be judgment for the defendant, dismissing the complaint, with costs.
Judgment accordingly.