56 A.D. 23 | N.Y. App. Div. | 1900
The -plaintiff alleges that he is the owner of the property known as Fo. 534 Greenwich street, in the city of Few York; that the defendant is in possession of certain lands lying adjacent to the plaintiff’s premises, and that the defendant has placed upon the premises occupied by it certain machinery for the purpose of generating electricity to be supplied to the general public for lighting and other purposes, and has so negligently constructed and operated the said machinery as'to discharge upon the premises of the plaintiff great quantities of soot, cinders, ashes and noisome gases, unpleasant odors, excessive heat, steam and the water condensing from steam, and makes and produces in the operation of its machinery loud, disagreeable and incessant noises and great jar and vibration, which are transmitted into and through the property of the plaintiff, thereby causing a great nuisance and disturbing the rest and quiet of the inmates of the plaintiff’s property and injuriously affecting their health and -their quiet and peaceable enjoyment and use
The court found that the operation of the defendant’s machinery causes great vibration, which is transmitted through the earth to the plaintiff’s premises, causing physical disturbance thereof, together with loud, disagreeable and annoying sounds; that the defendant also causes and'suffers large quantities of' dry and moist soot and cinders to issue from the chimney or smokestack and that the same enters the plaintiff’s dwelling house; that the plaintiff, by reason of such vibrations, smoke, soot and cinders, has sustained damage in the sum of $794.46; “ that defendant is financially responsible, and serious inconvenience would result to the public and to its private patrons and great loss and damage would be sustained by defendant "if the operation of its said plant should be perpetually en joined, and also if the operation of said plant in such a manner as to constitute a nuisance to plaintiff should be forthwith enjoined without affording it an opportunity to abate the nuisance if possible, otherwise than by stopping the operation of its said plant.” The court, therefore, directs judgment for an injunction perpetually enjoining the defendant from so operating its machinery as to cause or produce a jarring, shaking or vibration of the plaintiff’s dwelling house of such a character as to occasion material or substantial physical discomfort, disturbance or annoyance to the tenants or occupants thereof, or so as to constitute a nuisance, or so as to materially depreciate the value of the said building for use or occupation as a dwelling or tenement, or so as to seriously interfere with the plaintiff’s use or enjoyment of his said premises; also perpetually enjoining and restraining the defendant from so operating or running its said electric lighting plant during the night time as to cause or create any loud, excessive, disagreeable, annoying or injurious sounds; and also enjoins the defendant from so running or operating its said machinery so as to discharge or force into the public sewer such an excessive volume or quantity of steam as to cause heat, stench and offensive odors to come up through the closet in the plaintiff’s dwelling house, or so as to allow or permit undue or unnecessary or unreasonable quantities of smoke, soot or cinders, moist or dry, to
The premises occupied by the defendant are on the southeast corner of Greenwich street and Vandarn street, with a frontage of seventy-five feet on Greenwich street. There was located in the building upon these premises-the machinery necessary for the generation of electricity used for the purpose of electric lighting and power. The plaintiff’s premises were on the west side of Greenwich street from sixty to eighty feet north of the defendant’s premises. There was evidence tending to show that a constant vibration was -caused to the plaintiff’s premises, which was just perceptible. There was also a perceptible noise from the defendant’s power house which could be heard about a block away. This noise was caused by the rush of the belts connecting the defendant’s machinery with the ■engine. In front of the plaintiff’s premises on Greenwich street -there was erected and in operation an elevated railroad, which ■caused noise and vibration to the plaintiff’s building when the trains passed; and this railroad runs constantly day and night. There was ■also evidence that steam and soot came from the chimney of the defendant’s power house ; but there is no evidence that such steam ■or soot went into or upon the plaintiff’s property. On the contrary, witnesses who were called by the plaintiff testified to the effect that such smoke and soot did not come from defendant’s property into the apartments of the plaintiff; that on a clear day it could not be noticed, but only on a dark day, when the steam or smoke came down to the street. -It did appear that there was dust. and cinders- from the elevated trains as they passed. This evidence as to ■the vibration to the plaintiff’s property was contradicted by witnesses called by the defendant. They testified that the vibration Upon the plaintiff’s premises was plainly visible when the trains on the elevated passed, but that there was no vibration otherwise., It
The proof that the operation of the defendant’s machinery caused substantial damages was not satisfactory. The plaintiff’s sole claim to damages rests ujion his proof of loss of rents, which he now claims was caused by the operation of the defendant’s business, while it appears in evidence that an elevated railroad exists in front ■of the plaintiff’s property and that he made a claim against the railroad company for injuries sustained by the maintenance and operation of its road, and obtained a substantial sum of money upon the settlement of that claim. In view of that fact it certainly cannot be said that the loss of rents was solely occasioned by the use to which the defendant had put its property, and this, especially, in view of the fact that the evidence is uncontradicted that during the - past ten years this neighborhood has changed from that of a residential neighborhood to one devoted almost exclusively to manufacturing and business purposes. Considering the locality and the nature ■of the business there transacted, it seems to me that this was not a case in which equity should enjoin the defendant’s use of the property, and that the plaintiff should be left to his remedy at law.
It is not claimed that the plaintiff has any easement or interest in the property now occupied by the defendant.' There is no contractual relation or covenant limiting the use to which the defendant can apply its property. The sole right of the plaintiff to maintain this action is upon the ground that the defendant is maintaining .a nuisance to the injury of the plaintiff. Existing modern conditions require the use of steam or other power in conducting the affairs
For this reason the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Yan Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.