Sweet v. Campbell

Rippey, J. This is an action in equity by residents of the locality to restrain the use by defendants of certain premises owned by them and located at the northwesterly comer of Madison avenue and Eighty-first street in the city of New York for a funeral church and general undertaking establishment on the ground that such location and occupation and use of the property would constitute a nuisance. Upon motion by defendant, under rule 113 of the Rules of Civil Practice, after answer, summary judgment was granted at Special Term for defendant and the complaint was dismissed with the proviso that the dismissal of the complaint was “ without prejudice to the institution of a new action after the completion of the proposed structure referred to in said complaint and the commencement of its use for undertaking and funeral purposes.” The Appellate Division affirmed and the case reaches us by permission of this court. We need not now consider the subject of nuisance by way of definition and determine whether the proposed use would constitute a private nuisance (Cf. Blackstone’s Commentaries, Book III, p. 216; Arthur v. Virkler, 144 Misc. Rep. 483), or whether the occupation and use of the property would amount to a nuisance under any circumstances regardless of location and surroundings (Cf. Melker v. City of New York, 190 N. Y. 481, 487-489). It is sufficient, at least, at this time to point out that the facts set up in the complaint, if established by competent and adequate proof upon a trial of the action, would furnish the foundation upon which a finding, if made, might be sustained, to the effect that the proposed occupation and use of the premises by defendants are unwarranted and unreasonable and constitute an action *149 able injury to the plaintiffs and a detriment to their properties. The complaint, on its face, states facts sufficient to constitute a cause of action. Defendants in their answer put in issue the material allegations of the complaint. They affirmatively allege that they had procured a permit from the Commissioner of Buildings and Housing for the erection of a building for the use in question, that the premises were located in a “ restricted retail district,” as provided in the zoning regulations, in which any use was permitted which was not expressly prohibited and that the proposed location and use of the premises was not within any of the excluded uses. The question presented is whether those allegations in the answer established by documentary evidence, i. e., the permit and the zoning law, set forth a defense sufficiently conclusive, as matter of law, to defeat recovery by plaintiffs (Lederer v. Wise Shoe Co., 276 N. Y. 459). It is the contention of defendants that the building complies with the Building Code of the city, that the zoning regulations do not forbid the location on and use of the premises for a funeral and undertaking establishment, that defendants have procured a permit from the proper authorities for such location and use which constitutes a conclusive adjudication that neither is prohibited by the zoning law, that the issuance thereof is reviewable only by the Board of Standards and Appeals, and that section 645 (a) of the New York city charter (effective Jan. 1, 1938) makes the permit, subject only to such review, a conclusive adjudication that the erection of the building is in accordance with all provisions of the rules, regulations, ordinances and statutes applicable thereto. We assume, but do not decide, that all of those contentions of defendants may be sustained. Nevertheless, even so, the right of plaintiffs to challenge, in an action in equity, the location of the funeral establishment and proposed use of the property on the ground that it constitutes a nuisance still remains (Rowland v. Miller, 139 N. Y. 93; Foster v. Scott, 136 N. Y. 577; Slattery v. Herbstone Realty Co., 233 N. Y. 420; Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 386-388). *150 The judgments appealed from should be reversed, with costs in all courts, and the motion for summary judgment denied.