Mackay-Smith v. Crawford

McLaughlin, J.: The plaintiffs are the owners of a house situated at Ho. 413-415 West Seventeenth street, in the city of Hew York, and they instituted this action to enjoin the defendants (who are the owners of adjoining premises, Ho. 411 West Seventeenth street) from storing cheese thereon, which it was alleged constituted a nuisance. Upon the trial it appeared that the defendants were dealers in butter and cheese, and that they stored many hundred pounds of the same in their building. On the part of the plaintiffs, several witnesses gave testimony to the effect that the cheese thus stored gave off a disagreeable and offensive odor, which rendered to a certain extent the premises of the plaintiffs uninhabitable. This testimony was contradicted by several witnessess called on behalf of the defendants. The learned justice before whom the trial was had reached the conclusion that the business conducted by the defendants upon their premises “ is a lawful one, carried on in a lawful and proper manner, and. in a proper place,” and “ that defendants do not maintain a nuisance on their said premises,” and he thereupon dismissed the complaint upon the merits, with costs. ' Judgment was thereafter entered to this effect, from which the plaintiffs halve appealed. [138] Whether or not the use of the defendants’ premises constituted a nuisance was a question of fact to be determined by the trial court, and it having found upon evidence sufficient to sustain the finding that such use did not constitute a nuisance, this court ought not to interfere. The rule is well settled that an appellate court, in reviewing the determination of a trial court on questions of fact, when the evidence is conflicting, is not warranted in reversing, merely upon the ground that in its opinion the trial court should have reached a different conclusion than it did; and that, in order to sustain a reversal on- the facts, it must appear affirmatively that the decision of the trial court is against the weight of evidence, or that it can be said, with a reasonable degree of certainty, that the trial court erred in reaching the conclusion which it did. (Foster v. Bookwalter, 152 N. Y. 166; Baird v. Mayor, 96 id. 567.) That the evidence here was conflicting needs only a brief reference to the record. On the part of the plaintiffs the witness Acker testified, in substance, that prior to the time the defendants commenced to occupy their premises, the atmosphere in the locality was good, but thereafter it was impregnated with an offensive smell of cheese ; that it permeated the whole building standing on plaintiffs’ premises, and that this odor was so'strong at times that she was Unable to occupy a portion of her apartment in this building; that it was substantially the same during all the time. Another witness, Ward, testified to substantially the same effect, and these witnesses were corroborated by four or five others. On the part of the defendants, both Dr. Allen and the witness Joffe testified-that they were inspectors of the health-department, ánd in the discharge of their official duties' had several times visited the premises of the defendants; that they found no objectionable odors about them. And one of the defendants, testified to the effect that the premises were used not only for the storage of cheese, but also butter; that butter absorbs any foreign odors; that the butter had not been affected, and that there were no objectionable odors about their building. These witnesses were corroborated, in some respects, by other testimony, and especially to the' effect that there were no obnoxious odors arising from the storing of cheese on defendants’ premises. It also appeared that there were in the immediate locality several [139] stables, a blacksmith shop and a vinegar factory, and while these facts could not be considered in determining whether or not the use o.f the defendants’ premises constituted a nuisance, we are of the opinion that it was entirely proper for a court of equity to take them into consideration in determining whether or not the plaintiffs were entitled to the relief sought. We think, therefore, that as there was sufficient evidence to sustain the finding of the trial court that the defendants did not maintain a nuisance on the premises, the judgment appealed from must be affirmed, with costs. Yak Brunt, P. J., and O’Brien, J., concurred; Ingraham and Hatch, JJ., dissented.