McKeon v. Lee — 28 How. Pr. 238

Majority

p. 238

NEW YORK SUPERIOR COURT.

Eliza McKeon agt. William S. Lee.

Headnote

An injunction will issue to restrain a defendant from using or running his factory (steam engine for marble work) which he has built closely adjoining the plaintiff’s premises, where it is shown that the plaintiff’s premises are injured by the vibration of the defendant’s building when the machinery is in motion.

New York Special Term,

November, 1864.

This action was brought to recover the amount of damages alleged in the complaint to have been done to premises of the plaintiff by the steam engine and machinery of the defendant’s marble works adjoining the same, and to obtain an injunction against the continuation of the injury.

The evidence shows that the plaintiff is the owner of two well constructed brick houses adjoining each other in Bleecker street, three stories ’ in height; that some time after those houses were built the defendant erected a five story brick building upon a lot adjoining the same, placing the southerly wall thereof, against and in contact with the northerly wall of one of the plaintiff’s houses, and occupied and used the same as a steam mill for sawing marble, and for other manufacturing purposes, and still continues to do so ; that the movements of defendant’s steam engine and machinery cause a great vibration in the body of his building, and that the same is by means of the contiguous walls, communicated to the plaintiff’s houses, where such vibration has been and is so great as to shake down the ceilings and loosen the walls of the houses, and otherwise greatly injure them, and to render them unsafe and uncomfortable to such an extent that their value for sale and for occupation has been lessened some forty or fifty per cent.

From these facts it seems evident that the defendant has not only disregarded the maxim “ sic utere tuo ut alienum

p. 239

non l<edas,” but also that other “great rule in equity, which requires every man to do by others as he might properly desire them to do by him were their relative conditions reversed. For if he had not placed his wall in achual contact with that of the plaintiff, but had left a space of no more than half an inch between the two, it is hardly probable that any vibration would have been communicated to the houses of the latter, of which she would have a right to complain.

The plaintiff must have judgment directing an injunction.