Opinion
December Term, 1901.
Henry J. Hemmens, for the appellant.
Frank M. Hardenbrook, for the respondents.
This case, in many of its features, both of law and fact, is similar to Bly v. Edison Elec. Ill. Co. ( 54 App. Div. 427), wherein the plaintiff Bly, as a leaseholder of the premises 33 West Twenty-sixth street, brought suit for damages and an injunction because of the manner in which this defendant's power house, which is located at 47 West Twenty-sixth street, was operated. In the present case the plaintiffs are the owners of the premises Nos. 37, 39 and 41 West Twenty-sixth street, and their property, therefore, is nearer the defendant's electric light plant.
The evidence here of the vibration and jar produced by the machinery, the emission of soot, cinders, steam and smoke, which, after leaving the chimney, came down upon this and adjoining houses, and the manner of conducting the defendant's business, particularly with respect to backing up carts and keeping them almost continuously on the sidewalk for the purpose of removing ashes, would support a finding that the power house as operated was a nuisance and caused injury to the plaintiff's property. Upon this record, however, there are considerations which are fatal both to the injunction granted and to the amount of damages awarded.
First: With respect to the injunction which restrains the defendant from "overloading the machinery." There would be difficulty in determining just when this provision was violated, the intervention of experts being necessary to ascertain precisely what "overloading the machinery" means, what were its effects and when it occurred; and, therefore, the enforcement of the injunction would, to a great extent, be impracticable. Moreover, the testimony to support the finding that this power bouse as conducted is a nuisance was principally directed to showing conditions which were in existence when the action was commenced, but which at the date of the trial were to some extent either modified or removed. It appears that after attention had been called to the defects in the machinery and the injurious manner in which the power house was being operated, changes were made, with the result that the vibration and jar to adjoining buildings were lessened, and to such a degree that at times they were imperceptible. So also an improvement was introduced in the method of removing the ashes, as well as in the general operation and management of the plant. Much of the testimony was that given by witnesses in another suit, Haynes v. Edison Elec. Ill. Co. (not reported), which, by stipulation, was read from the record in that case, and it related to conditions which, at the trial of this action had, as stated, to some extent, been modified or removed.
It appearing, however, that there was sufficient evidence to support the conclusion that when this action was commenced the plaintiffs were entitled to equitable relief by way of injunction, it would have been proper for the court — even though the injurious and damaging features had been eliminated before the trial, and, therefore, an injunction would no longer be necessary — to have retained the action for the purpose of awarding the damages which the plaintiffs had shown they had suffered. Although we differ, therefore, from the learned trial judge in thinking that the provision in relation to the injunction is not supported, and that in form it is impracticable of enforcement, we might modify the judgment by striking out this provision as to injunctive relief, and affirming the award of damage. Upon this record, however, we are prevented from doing this by a statement in the decision itself from which it appears that damages were included for a period for which no award could be made. Damages in an equity suit may extend down to the date of the trial, but they cannot be allowed, as was here done, down to the date of the decision. Of the total amount of damages awarded, we cannot tell how much was intended to cover the period of about seven months, between June, 1900, when the action was tried, and February, 1901, when the decision was made; and, therefore, we are unable either to affirm or modify the award of damages.
The judgment, accordingly, should be reversed, and a new trial ordered, with costs to the appellant to abide the event.
VAN BRUNT, P.J., INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.