107 Misc. 33 | N.Y. Sup. Ct. | 1919
This is an action for a permanent injunction and damages. The plaintiff is now and, for a long time, has been the owner of the lot and building known as number 493 Blake avenue in the borough of Brooklyn. Her husband built the house, which is a six-family brick building, three stories in heighth. The plaintiff occupies one apartment and rents the other five apartments to tenants for residential uses.
The defendant is the owner of the land adjoining the plaintiff’s property on the west and lying between that property and Van Sinderen avenue. Upon its said lot or parcel of land, the defendant, about September, 1918, erected a brick building covering the entire space between Van Sinderen avenue on the west and the plaintiff’s building on the cast, and so constructed that the easterly Avail of the defendant’s building was against and in contact with the westerly wall of the plaintiff’s building. The defendant’s building has, since its construction, been used and is now used for the manufacture of ice. The defendant’s buildings extend along Van Sinderen avenue far beyond the rear of the plaintiff’s house, and consist of a number of large brick buildings, some of which are not, as yet, completed. The front building of the defendant, facing on Blake avenue, consists of an engine-room on the street, level with heavy and ponderous machinery propelled by electricity, and with an ammonia condenser on the roof close to the plaintiff’s westerly side wall. In the rear of the engine-room is a building used as a freezing room where large cakes of ice, frozen in heavy metal tanks or cans, are being bandied after manufacture. The
I have myself examined the situation, and find the condition to be as above described. This condition finds ample support in the evidence in the case; indeed, in many respects, it finds support in the testimony of the witnesses called on behalf of the defendant, some of whom, I am glad to say, testified truthfully concerning the condition, although they were, and I presume still are, in the defendant’s employ.
The defendant’s evidence shows, and, indeed, it was not denied, that some machinery and foundations for machinery than those already in place will shortly be put upon the defendant’s property. Evidence of the same fact appeared to me upon my examination of the premises. The jarring of the plaintiff’s house and
The facts in this case clearly come within the rule as to private nuisance which is established in our law, and within such rule the plaintiff is entitled to a permanent injunction to prevent the maintenance of such nuisances as have been established by the evidence in this ease and which, unless restrained, will be a permanent trespass on the plaintiff’s ‘ property. The plaintiff claims that before the erection of the defendant’s building her property was worth $12,000, and that now it is only worth $8,000. I am inclined to agree with her in this claim, and shall, therefore, direct that the defendant, if it would avoid the granting of a permanent injunction restraining it from the operation of this ice-plant, pay to the plaintiff the sum of $4,000, which I find to be the damages sustained by the plaintiff. See Friedman v. Columbia Machine Works, 99 App. Div. 504; McKeon v. See, 51 N. Y. 302; Fish v. Dodge, 4 Den. 311; Hartshorn v. Chaddock, 135 N. Y. 116. Judgment is rendered accordingly, with costs.
Judgment accordingly.