McGuire v. Bloomingdale

The plaintiff seeks to obtain a preliminary injunction pending this action, which shall restrain and enjoin the defendants from running the engines,.

From the papers it appears that the defendants are drygoods merchants, occupying a large building on the-corner of Third Avenue and Fifty-ninth Street, covering the entire front on Third Avenue, and six or eight houses -on Sixtieth Street, down to the'plaintiff’s premises. It also appears that the machinery, the running of which the plaintiff seeks to enjoin, is necessary for the proper lighting and heating of their premises. The dynamos complained of .are shown by defendants’ affidavits to be noiseless, and do not cause vibration of the buildings in which they are used, .and that the pneumatic blower creates but little noise. The defendants also deny that they load or unload their wagons in front of the plaintiff’s premises, or that their employees congregate in front of the same. They show, on the contrary, that all goods are delivered on Fifty-ninth Street and not on Sixtieth Street. .

It cannot be doubted that- a court of equity has jurisdiction to interfere by injunction to prevent the erection or maintenance of a nuisance which will produce a serious or irreparable damage ; but in all such cases it must clearly appear that the thing sought to be prohibited is a nuisance, and of a character to do the plaintiff irreparable injury if not at once prevented. If' this is not done, the court will not interfere (Mohawk Bridge Co. v. Utica & Schenectady R. R. Co., 6 Paige, 555; Hudson & Delaware Canal Co. v. N. Y. & Erie R’y Co., 9 Id. 322).

While preliminary injunctions which only prevent the -defendant from doing an act which would render the final judgment ineffectual are freely granted,those which in effect determine the litigation, and give the same relief which it

And again, regard should be had to the nature and extent of the injury which the plaintiff would suffer if the injunction should be withheld, as well as to the consequences to the defendant of the injunction should it be granted pendente lite (Bruce v. Delaware & Hudson Canal Co., 19 Barb. 371 ).

In the latter case the court says : “ It is not every case, even of a clear violation of the plaintiff’s right, that entitles him to an injunction to restrain such violation.” Against an act, which is not in itself necessarily a nui.sance, the injunction should not be granted until the question whether it is a nuisance or not, has been determined in a preparatory issue (Mapleson v. Del Puente, 13 Abb. N. C. 144 ).

Under all the facts in this case, I do not think the noise, if any, or the vibration are' sufficient to constitute a nuisance. Whether noise alone constitutes a nuisance ■depends upon circumstances. Trifling or occasional noises, dependent upon the ordinary use of property, or in pursuance of an ordinary trade or calling, do not ordinarily ■constitute a nuisance, although those in the neighborhood, are disturbed. The quality or character of the noise may be an important element in determining the question of nuisance or no nuisance. The fact that certain persons annoyed are super-sensitive is not to be taken into account, the average susceptibility being the test. The matter of locality has much to do with whether it is a nuisance or not. In the case under consideration, the plaintiff’s premises are within a few doors of Third Avenue, where the •elevated railroad and cable railroad are in constant operation, and it is a notoriously busy thoroughfare; and the .same is true of Fifty-ninth and Sixtieth Streets. In fact, it

Hence, it is said the production of mere inconvenience resulting from the exercise of trade will not be restrained (Wood on Nuisances, 175, 1175).

In the case of Huckenstine’s App. ( 70 Pa. St. 102 ), it was held that a court of equity will not restrain the exercise of a trade producing a smoke and injurious vapor where there are similar establishments in the same locality, and I think the same is true of noise.

A party may rightfully and lawfully prosecute a lawful business upon premises adjoining his neighbor, without interference from his neighbor, unless .the mode of conducting this business has been, or threatens to be, such as to materially injure the plaintiff’s property or to interfere with the comfortable existence of such of their tenants as a-e reasonable people, able and willing to enjoy life, “ subject to the inconvenience necessarily resulting from

The noise produced by the machinery of the defendants in the case under consideration is not, I think, unusual. It is such as is ordinarily incidental to the operation of similar machinery used in the conduct of like business in other parts of the city. So it has been recently held in this court that a blacksmith’s forge will not be interfered with because it is not pleasant for the neighbors (Smith v. Ingersoll Sergeant Rockdrill Co., and cases there cited; opinion by Judge BlSCHOFF at Equity Term, filed February 2, 1894). And the same was held in Doellner v. Tynan ( 38 How. Pr. 176 , 182).

On the other hand, it appears from the papers that the defendants would be put to much expense and great inconvenience if they were prohibited from using the pneumatic delivery. It would almost stop trade in the store for a considerable period of time, and it is doubtful whether anything could be devised which would be less annoying to the plaintiff than the system now adopted.

For all these reasons, I think the injunction should be refused at present, and only granted if, after a full hearing of both sides upon the trial of the merits, it should appear that the noise complained of and the vibration is really caused by the machinery, and is detrimental to the proper use of the plaintiff’s premises.