57 N.Y.S. 330 | N.Y. App. Div. | 1899
The plaintiff is the owner in fee of four lots of land, with the-buildings thereon erected, on the northerly side of One Hundred and Sixteenth street, between Pleasant avenue and the Harlem
That decision restrains the defendant, not from operating its gas works in a lawful and proper manner, but from operating them in such a manner as to create a nuisance. It specifically enjoins the defendant from operating its works in such a manner as (1) to emit noxious and offensive odors upon or into the plaintiff’s premises; and (2) to cause loud explosions and noises known as the “ blow off ” or “ pop off ” and the flash of light caused by the burning of gas at the stack valve when the process of making gas is stopped for the purpose of replenishing the furnace.
These odors, explosions, noises and flashes are undoubted nuisances. It was so found as matter of fact by the Special Term, and the finding was warranted by a clear preponderance of evidence. The facts on this head are very much the same as they were in Mrs. Rosenheimer’s case. Thus the injunction is supported, not only by independent evidence, but practically by the verdict of a jury in an action at law between the defendant and the plaintiff’s immediate predecessor in title. Upon the appeal from the judgment in Mrs.
As to the defendant’s first alternative, we need only say that a case for the interposition of a court of equity was, under well-settled rules, made out, and that the judgment was entirely correct. The defendant was not, as we have seen, enjoined from operating its gas works in a lawful and proper manner. If it cannot operate them without creating a positive nuisance to the serious and permanent injury of its neighbors, it should be stopped. But the evidence given by one of its own witnesses satisfies us that it can, if it chooses, operate its gas works without creating the nuisances condemned by the court below. The judgment was, indeed, most conservative, as "the injunction was reasonably limited to the two specially objectionable features already adverted to.
Upon the whole we think the judgment upon both the facts and the law was right and should be affirmed, with costs.
Rumsey, Patterson and McLaughlin, JJ., concurred.
Judgment affirmed, with costs.