| N.Y. App. Div. | Oct 31, 1939
Appeal by defendant from a judgment of the County Court of Queens county, convicting it of maintaining a public nuisance in connection with the operation of empty trolley cars over its right of way. Judgment reversed on the law and indictment dismissed. Assuming, without deciding, that the facts established the existence of a nuisance, its redress by those aggrieved is by resort to civil remedies for the obtaining of damages or injunctive relief, or both. (People v. Cooper, 200 A.D. 413" date_filed="1922-03-03" court="N.Y. App. Div." case_name="People v. Cooper">200 App. Div. 413, 416; People v. Transit Development Co., 131 id. 174.) The rights invaded by the maintenance of the alleged nuisance are not suffered by the complainants in their status as citizens or part of the public. They suffer in their private capacity in respect of an interference with the comfortable enjoyment of their homes, which latter is a private nuisance and does not become a public one merely because a considerable number are injured. The noises of which complaint is made are contemporaneous with noises incident to the operation of an elevated railroad above the private way upon the tracks of which latter the empty trolley cars are operated. Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ., concur.