Rogers v. Hanfield — 12 N.Y. St. Rep. 671

Majority

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George W. Rogers, Resp’t, v. De Witt C. Hanfield and John Johnson, App’lts.

(Court of Common Pleas, General Term,

Filed December 5, 1887.)

Headnote

Injunction—Blasting—Compliance with the requirements of an ordinance.

An injunction will issue where the complainant is threatened with an irreparable injury. And where excavating is being done, though carried on in obedience to the requirements of an ordinance, this fact will not prevent the issuing of an injunction where the property of another is threatened with damage from the very acts of the defendant.

The plaintiff is owner of a lot of land on the corner of Seventieth street and Ninth avenue, in the city of New York, upon which he is erecting a building. His work has progressed up to the laying of the first tier of beams.

The defendants are engaged in clearing premises next adjacent on the north, from rock, and plaintiff alleges that they have been negligent in their blasting, so that large quantities of loose rock have been hurled upon his premises and into his cellar to his great detriment and injury; that defendants have threatened to continue blasting with the same disregard of his rights, and that he fears irreparable injury therefrom. The defendants deny all imputations of malice on their part, as well as the fact that any substantial injury has been done.

An injunction was granted pendente lite restraining the defendants from “so blasting the rock on the premises adjoining the premises of the plaintiff, that any rock so blasted shall fall or be thrown upon the premises of the plaintiff, or said premises be in any way injured.

From the order, made after argument on the return of the order to show cause, continuing such temporary injunc

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fion, during and until the determination of the action, this appeal is taken.

W. Grigg, for resp’t; Geo. H. Forster, for app’lt.

In the affidavits submitted by defendants, it is urged as a ground for the dissolution of the injunction that the blasting they intend carrying on will not in any respect injure plaintiif’s building. This they give as their opinion as experts, and they further intimate that they will proceed with proper caution so as not to expose the building to any danger. But, if this be so, what substantial objection can they have to the continuance of the injunction? It merely restrains them from doing what they say will not be done anyhow. One of the strongest arguments for holding the injunction is, the fact that defendants are so restive under it.

On the other hand, if the plaintiff’s allegations as to the reckless blasting heretofore indulged in, and the resulting damage are true, he certainly has just reason for apprehension and valid cause, to ask the interposition of equity. His allegations are denied, but the question of their truth or falsity could not be determined on affidavits.

The learned counsel for the defendants quotes a city ordinance requiring certain precautions to be taken in all cases of blasting, and seems to argue therefrom that if its requirements are complied with, an excavator has discharged his whole duty, both to the public and his immediate neighbors, no matter what special circumstances may exist, and that it is beyond the power even of a court of equity to exact anything more from him. In this I think he errs. The ordinance is general in its application and for the protection of the public. It would require identically the same rules to be observed, whether the rocks being blasted were situated in vacant lots or near the greenhouse of a florist. But a court of equity may go further, and, when the special reason exists, compel the excavator to carry on the blasting without imperiling adjacent buildings. This he may do by using smaller charges and heavier coverings, and it is no answer to such requirement to say that more time will be consumed and that the operation will be more expensive.

I have examined all the cases cited by the counsel for defendants, in which an injunction pendente lite was refused, and do not find any of them in point.

In New York Printing and Dyeing Establishment v. Fitch and ano. (1 Paige, 96), for instance, the application was for an injunction against landing passengers from a ' steamboat on a dock belonging to another. It was there v.ery properly held that no irreparable injury would result

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from denying a temporary injunction. But, in the case at bar, I think the following language from Mr. High’s work on Injunctions (section 7) states the governing rule :

“So when defendants in erecting a building upon a lot adjoining the premises of complainant, are removing blocks from the wall of their building, to its great injury and ■detriment, the act, although a trespass, is of such an irreparable character as to warrant an injunction.”

The principle here involved is analogous to that stated by the text writer. See also Poughkeepsie Gas Co. v. Citizens' Gas Co., 89 N. Y., 493 ; Fox v. Fitzsimons, 29 Hun, 574 ; Tribune Asso. v. Sun, 7 id., 175; and Bagaley v. Vanderbilt, 16 Abb. N. C., 359 .

In my opinion, plaintiff has adequate cause to fear irreparable injury, as the authorities have defined that expression, and the order continuing the injunction should be affirmed, with costs.

Van Hoesen and Bookstaveb, JJ., concur.