Blunt v. Hay — 4 Sarat. Ch. Sent. 362

Majority

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Blunt and Murray v. Hay.

October, 1846 ; and again, Jan. 26, 27 ;

March 17, 1847.

Headnote

A motion for an injunction, after appearance and upon notice, may be madé and resisted, upon such affidavits as either party may be able to produce. The injunction can be granted only on the case made by the bill, but that case may be established by affidavits.

Two persons, owning distinct tenements in severalty, which are injuriously affected by a nuisance common to both, may unite in a suit to enjoin such nuisance.

Where a supplemental bill becomes necessary, in respect of the case of one of two parties who have commenced a suit against such a nuisance, it is proper to exhibit the same in the name of both of the parties ; and an injunction may be granted, on sutih supplemental bill, on the application of the party presenting the new matter, although it in no respect adds to or sustains the case of the other party Complainant.

After a verdict and judgment, in a suit at law for a nuisance, it is competent for either party to prove in another suit, on which, of several grounds of nuisance stated in the declaration, the judgment was given.

Motion for an injunction, on a supplemental bill, and on affi

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davits. The original bill was filed to restrain the defendant from carrying on a fat melting establishment, in the First Avenue in the city of New York, which it was alleged was a nuisance, affecting very injuriously certain adjacent tenements, some of which were owned by the complainant, Joseph Blunt, and others by the complainant, James B. Murray, in severalty.

While the suit was pending, Blunt brought an action at law against the defendant, Hay, for damages occasioned to him in respect of his tenements, by the nuisance maintained by Hay, In one count of his declaration, the nuisance was alleged to have been occasioned by melting tallow, boiling soap, manufacturing candles, and curing green hides, by the defendant, in his establishment in question. The suit at law was tried, and it resulted in a verdict in favor of Blunt, on which a general judgment was entered, applicable to all the counts in the declaration. Thereupon a supplemental bill was filed in favor of Blunt and Murray, settingup the suit at law, the trial, verdict and judgment, and averring that the recovery in that suit was upon the sole ground that the fat melting, as conducted by the defendant, was a nuisance to the neighboring property of Blunt. The case made by the defendant, with a view to move for a new trial, as settled by the judge, was produced on the motion, verified by an affidavit j and other affidavits were read, tending to support the allegation in the supplemental bill, that the fat melting was the sole ground of the recovery.

The defendant, who had appeared and answered in the original suit, appeared to the supplemental bill, and demurred. He opposed the motion for the injunction on affidavits as to the course of the trial, and the questions there controverted. A preliminary question was made, as to the admissibility of the affidavits on either side, to be used on the motion, The reading of those on the part of the defendant, was resisted, because by demurring he had admitted the facts stated in the supplemental bill. The defendant also objected to the reading of the case made in the suit at law.

C. A. Rapallo, for the complainants.

J. E. Burrill, Jr., for the defendant.

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The Vice-Chancellor made the following observations, on the preliminary objection. The motion for the injunction is now made after appearance, and upon notice. I perceive no good reason why it may not be made and resisted, like any other motion to the court, upon such affidavits, and other papers as are pertinent, which either party may be able to produce. Of course, the injunction must be founded upon the matter of the bill, but that matter may be established to the satisfaction of the court, on a motion like this, by any competent evidence, without relying upon the oath of the complainant.

The chancellor has decided that the defendant in such a case, may introduce affidavits in opposition to the application ; and it is obvious.that the complainant may, with equal propriety, fortify his application by similar means.

I think the case in the suit at law is admissible, and may be read in support of the application.

The motion was then argued upon its merits ; in the course of which the defendant took several objections to the proceeding, the principal one being that upon which he had interposed his demurrer, viz., the making Murray a party complainant in the supplemental bill.

C. A. Rapallo and J. Blunt, for the complainants.

J. E. Burrill, Jr., for the defendant.

(March 17.)—Ihave no doubt upon the evidence furnished by the parties on this motion, that-Mr. Blunt’s recovery in the suit at law was exclusively on the ground that the fat melting as conducted by the defendant, was a nuisance to the neighboring property of Blunt.

It is certainly competent for either party to prove on which ground the suit was determined, where several are stated in the declaration. And in this instance, if Mr. Hay were sued by Blunt for a nuisance in respect of the green hides and the manufacture of soap and candles, and this verdict should be produced as conclusive evidence of those matters constituting such

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a nuisance; the same proof now before me, would establish in Hay’s favor, that the verdict had no bearing upon the question.

I have already determined that it was proper for Blunt to set forth the trial and verdict at law, by way of supplemental bill.

The question remains, can he avail himself of it, in aid of the joint suit of himself and Murray; and if so, should Murray be joined in the supplemental bill ?

The chancellor has settled in this case, that the common interest which the two complainants had in suppressing the nuisance as set forth in their bill, warranted them in uniting in the suit, although their property alleged to be injured, was wholly distinct and owned in severally.^[1] Whether, if for any cause, one of the two shall fail at the hearing to show a title to relief, it will deprive the other of relief also, is a point not now to be determined.

In stating their case in the original bill, the complainants necessarily set forth facts concerning their respective titles and the locality of their lots of ground injured by the nuisance, in which but one of them had any interest, either in alleging or proving.

So of the trial and verdict set forth in the supplemental bill. It is a part of the case of Blunt. Murray has no interest in it. It neither supports his title, nor furnishes evidence in his favor, as against the defendant.

But I see no reason why it is not proper for him to join Blunt, in making the allegation in favor of the latter. It is evidently right and proper that Blunt should have the benefit of this verdict, in the suit in equity. In a supplemental bill brought for new matter, where there has been no change of parties, all of them must be made parties to such bill.

Hence it was necessary to file the supplemental bill in the name of both of the complainants; unless for the sake of some abstract technicality, the court will deprive Blunt of the benefit of his recovery at law.

(a) (a) Since reported in 1 Barbour’s Ch. R. 59.

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If it be said that the result will be a direct benefit to Murray by means of a verdict to which he was neither a party or privy, through an injunction founded upon it as evidence in favor of Blunt; the answer is, that he will be no more benefitted than he would have been if not a party to this suit, and no more than all who reside or own property in the vicinity. If Blunt appear to be entitled to an injunction, the court cannot refuse to grant it, because it may enure to the benefit of others.

I think the objections to the supplemental bill, in respect of Mr. Murray’s being a party, are not well taken ; and I am convinced that the verdict at law settles the point, so far as it is now before the court, that the defendant’s business of melting fat is a nuisance injurious to Blunt’s neighboring house, and he is entitled to an injunction against its further continuance.

In order to avoid, as far as justice to the complainant will permit, injury and inconvenience to the defendant, the injunction (which may issue at once,) will take effect on the 2Qth of April pext.

Order accordingly.