Newgold v. Childs Co.

Full title: MORRIS NEWGOLD, Respondent, v . CHILDS COMPANY, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 15, 1911

148 App. Div. 153 (N.Y. App. Div. 1911)

Opinion

December 15, 1911.

Joseph Diehl Fackenthal, for the appellant.

John Bogart, for the respondent.

SCOTT, J.:

Defendant appeals from an order granting an injunction pendente lite.

The action is to enjoin the use by defendant of its own premises in such a manner as to constitute a nuisance as to plaintiff's property. The rule respecting the use of one's own premises where it unfavorably affects adjacent premises is well settled. If the use is reasonable there can be no private nuisance, but if the use is unreasonable and results in substantial injury an actionable nuisance exists, and whether a given use is reasonable or not is a question of fact depending on many and varied facts. ( McCarty v. Natural Carbonic Gas Co., 189 N.Y. 40.) That, ordinarily, is a question to be determined upon the trial and should not be determined in advance upon a preliminary motion unless the plaintiff's right to relief is clear and practically beyond dispute, and more especially is this true where there is no doubt suggested as to the ability of the defendant to respond in damages. The order appealed from is in effect a mandatory injunction requiring the defendant to make important structural changes in its building, or to discontinue business altogether. By the order the litigation is in effect determined, and gives to plaintiff the same relief which he seeks to obtain by judgment. Such orders should be granted with great caution and only under exceptional circumstances. ( Maloney v. Katzenstein, 135 App. Div. 224.) This is not such a case. The defendant has already offered to remove at its own expense all cause for complaint by a method which involves the acquiescence of plaintiff, and we are by no means satisfied that plaintiff was not unreasonable, under all the circumstances, in withholding his acquiescence. This is one of the questions which can best be answered at the trial.

The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

INGRAHAM, P.J., LAUGHLIN, CLARKE and MILLER, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.