Wilsey v. Callanan — 49 N.Y. St. Rep. 530

Majority

p. 530

Carrie Wilsey, Resp’t, v. Peter Callanan, App’lt.

(Supreme Court, General Term, Third Department,

Filed December 8, 1892.)

Headnote

Nuisance—Injunction pendente lite.

In an action to restrain defendant from blasting rock on Ms premises in such manner as to throw them upon and against plaintiff’s premises an injunction pendente lite is proper, especially where the defendant admits that he can carry on Ms business without casting the debris on plaintiff’s premises.

Appeal from order restraining defendant from throwing stones, by blasting in his quarry, upon the premises of the plaintiff until the further order of the court.

William G. McHarg (Matthew Hale, of counsel), for app’lt; Andrew Vanderzee, for resp’t.

The defendant is enjoined from throwing stones on the premises of the plaintiff by blasting in his quarry. The affidavits show that stones have been from time to time thrown upon the plaintiff’s premises by the defendant, sometimes crashing into and through her dwelling house.

The plaintiff is not at all unreasonable in asking that such a dangerous proceeding be stopped.

That the court has power to stop it by injunction cannot be questioned. And where, as in this case, the defendant professes to be able to carry on his business without casting the debris of his blast upon the plaintiff’s premises, what substantial objection can he have to the continuance of the injunction? Rogers v. Hanfield, 12 St. Rep., 671 .

The injunction does not stop the defendant’s business, it simply prohibits him from doing it in such a manner as renders it a nuisance to the plaintiff, and a menace to life and limbs.

It seems to me under such circumstances it would be an abuse of the court’s discretionary powers as to granting injunctions pendente lite to refuse to restrain the defendant from doing that which is not necessary to enable him to carry on his business, and the "doing of which may result in great injury to the plaintiff.

The order should be affirmed, with ten dollars costs and printing and other disbursements.

Mayham, P. J., and Putnam, J., concur.