Martin v. City of New York — 77 N.Y.S. 1013

Majority

p. 1013

MARTIN v. CITY OF NEW YORK et al.

(Supreme Court, Special Term, New York County.

August, 1902.)

Headnote

1. Nuisance—Deposit of Garbage by City—Injunction—Pendente Lite— Affidavits.

Where, on an application for an injunction pendente lite to restrain a city' from depositing garbage, defendant’s affidavits show the inconvenience too inconsiderable for denomination as a nuisance, and the system adopted seems to minimize any inconvenience from smell, the injunction will not be granted.

Suit by Michael Martin against the city of New York and others. Motion for an injunction pendente lite to restrain deposit of garbage. Motion denied.

Cornelius J. Early, for the motion.

George E. Rives, Corp. Counsel (Terence Farley, of counsel), opposed.

Upon the question of the degree of smell arising from the filling in of Rilcer’s Island, the affidavits are in absolute conflict. If the defendants’ averments are to be accepted, there is no ground for an injunction, since the matter complained of is disclosed to be too inconsiderable- for denomination as a nuisance, and I find no good reason for holding that the preponderance is with the plaintiff. The system adopted by the city for the avoidance of smell would apparently suffice to minimize any possible inconvenience, and there is no warrant for my assuming that this system has not been carried out. Slight inconvenience to some individuals must sometimes result from the necessities of disposing of the garbage of a great city, and I am not prepared to say, upon the papers before me, that the existence of any serious ground of complaint has been proven by the weight of the evidence. The consequences of an injunction in this case would be too serious to be justified by the assumption that the plaintiff may have a probable cause of action, where the actual proof presented is not persuasive, and I conclude that the right to an injunction should not be determined upon these affidavits favorably to the plaintiff before trial.

Motion denied, with $10 costs.