Seebeck v. Pucci — 40 N.Y.S. 1149

Majority

p. 1149

SEEBECK, Respondent, v. PUCCI, Appellant.

(Supreme Court, Appellate Division, First Department.

July 31, 1896.)

Headnote

Action by Nicholas F. Seebeck against Antonio G. Pucci.

Ezekiel Fixman, for appellant.

Leo G. Rosenblatt, for respondent.

The order appealed from must be affirmed. It restrained the defendant only from blasting rock on the land adjoining the plaintiff’s house and lot in such a way as to throw pieces or fragments of the rock excavated upon or against the plaintiff’s walls. There was a question of fact involved, and, on the conflicting affidavits, the court was justified in adopting the plaintiff’s statements, and did so. The injunction as finally allowed did not restrain the defendant from continuing the work of blasting, nor interrupt his business, but only enjoined him from conducting that business in one particular prohibited way. The order' is affirmed, with $10 costs and disbursements.