Kocska v. Gering Bros

Full title: FRANK KOCSKA, FRANK JENEY, GEORGE S. CORDES, JR., FRANK H. CORDES, JOHN…

Court: Court of Errors and Appeals.Court of Chancery and Prerogative Court

Date published: May 20, 1941

129 N.J. Eq. 548 (N.J. 1941)

Opinion

Submitted February term, 1941.

Decided May 20th, 1941.

1. Increased danger of fire is not a sufficient reason to restrain that which causes the increase of danger.

2. The decree dismissing the bill of complaint which sought to restrain defendants from operating a cellulose plant and storing the manufactured products on the premises, was justified under the facts proved.

On appeal from the Court of Chancery, whose opinion is reported in 128 N.J. Eq. 74.

Mr. Harry J. Weiner, for the complainants-appellants.

Mr. Percy H. Penn, for the defendants-appellees.

PER CURIAM.

This appeal is from a decree in Chancery, advised by Vice-Chancellor Stein, dismissing the bill of complaint, which sought to restrain the defendants from operating a cellulose plant and storing the manufactured products on the premises.

The complainants, at the hearing in the Court of Chancery, sought to establish the existence of a nuisance on the grounds that the plant operation resulted in smoke, fumes, loud noises, as well as disagreeable odors from waste materials. These grounds are abandoned on this appeal and it is now argued that the storage of cellulose on the premises, which materials they claim to be of an inflammable nature, caused the complainants to live in fear of their safety. The learned Vice-Chancellor found to the contrary on this issue and held that "increased danger of fire [which may be conceded here] was not sufficient reason to restrain that which causes the increase of danger." This, we think, has been the law of this state for a long time. Wolcott v. Melick, 11 N.J. Eq. 204. The plant of the respondents, as the Vice-Chancellor pointed out, is located in a country, not an urban, site and our review of the evidence in the case leads us to the conclusion that the decree dismissing the bill of complaint was justified under the facts proved.

The decree will be affirmed.

For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 15.

For reversal — None.