Opinion
02-07-1895
FEENEY v. BARTOLDO.
S. M. Ward, for complainant. F. W. Freeman, for defendant.
Bill by John Feeney against Negro Bartoldo to enjoin defendant from using a piano in his saloon. Application for a preliminary injunction granted.
S. M. Ward, for complainant.
F. W. Freeman, for defendant.
BIRD, V. C. This is an application for a preliminary injunction, restraining the defendant from the use of a piano. The defendant is the owner of a saloon next adjoining the dwelling of the complainant. In this saloon the defendant makes sale of beer and other liquors, and on the 5th of January of the present year placed therein a piano, which has been played every night, except Sunday nights, from 7 o'clock until 10, and sometimes until after 11 o'clock. This is accompanied with dancing and loud noises by the customers of the defendant. The effect of this musical and pedestrian performance isto so greatly annoy and disturb the complainant and his wife and children that they are unable to sleep at night during the continuance of these noises. Hence the application for the interference of this court That the defendant has a right to the ordinary and proper use of a piano in his saloon, and that his customers have a right to dance to the music as expressed by such instrument there can be no doubt. There is no distinction between citizens in this respect. Every citizen is permitted to possess himself of the instrument, and also to enjoy a dance. But it is equally well settled that every citizen, in the exercise of his individual rights in the use of his property, is limited to such use as will not interfere with the reasonable rights of others in the enjoyment of their property. With these fundamental principles, concerning which there can be no dispute, and with the cases of Thompson v. Behrmann, 37 N. J. Eq. 345; Walker v. Brewster, 5 L. R. Eq. 25, and Soltau v. De Held, 2 Sim. (N. S.) 133, as a guide, I do not see my way clear to deny the preliminary injunction, so far as to restrain the use of this instrument after 9 o'clock in the evening. This may abridge the supposed enjoyment of the defendant and his customers, but, if the allegations of the bill sustained by the affidavits annexed thereto are at all to be relied upon, the defendant's legal" rights will not in any sense, be impaired. If the defendant desires, he can, by application to the court, have the case promptly brought to a final hearing, and speedily disposed of, unless the complainant shall insist upon such delay as the ordinary practice of the court may tolerate. In case the complainant should in any sense resist a speedy hearing of the cause, the court would feel itself at liberty to dissolve the Injunction. I will advise an order that an injunction do issue restraining the use of the piano by the defendant or his agents after the hour of 9 o'clock in the evening.