Anderson v. Doty

Rumsey, J.: . The defendant moves to vacate this injunction upon the papers on which it was granted. Upon the facts alleged there is no doubt that the house of the defendant is a common nuisance. It is situated as alleged, at No. 91 Exchange street. The house of plaintiff, in which he resides, is at No. 101, and he also owns Nos. 99 and 101-J- on the same street. He alleges that by reason of the keeping of the bawdy house of the defendant, the neighborhood has become disreputable, and much less desirable as a place of residence than it would have been, and the plaintiff has been unable to find a person to occupy or pay rent for his said houses during a considerable time; and at other times he has been able to get tenants for them only by accepting undesirable and irresponsible tenants, and has at all times been compelled to accept a much smaller rental than the houses would have been worth were it not for the existence and effect of the nuisance maintained by the defendant. The nuisance is said to consist in the fact that the defendant’s house “ has been and is kept as a dwelling place for lewd women and prostitutes, and a resort for lewd men and women for lewd purposes, and as a bawdy house, and a disorderly house, and a nuisance.” There is no allegation of any noise, or any ‘ physical discomfort or tangible injury to the persons of the occupants of plaintiff’s houses, or to the property, but the injury complained of is entirely consequential in its nature, arising from the fact that decent people will avoid such places, however quietly conducted, because of the inconveniences which they apprehend may occur, although such apprehensions may never be realized. The defendant’s counsel bases his motion upon the ground that a private action will not lie to restrain a public nuisance, unless the plaintiff suffers an injury by it to his person or property different in character from that common to all citizens, and that this particular injury must be some sensible physical discomfort or visible injury to property. The general rule [162] is well settled that a private individual cannot restrain a public nuisance by his private action unless he suffers damage different in kind from that which the nuisance causes all other people. (Coke, 56 a; Stetson v. Faxon, 19 (Pick., 147.) But this private injury must be physical, that is, it must be offensive to the senses, or endanger health, or render the use of property uncomfortable, or. actually interfere with its use. (Wood on Nuisances, 4; Catlin v. Valentine, 9 Paige, 575; Brayton v. Fall River, 113 Mass., 219—229; St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas., 642.) Mere liability to injury is not sufficient. (Blackwell v. Old Colony R. R. Co., 122 Mass., 1-3; Milarkey v. Foster, 25 Am. R. 531 and note; Stetson v. Faxon, 31 Am. Dec., 123, and note.) Nor is mere consequential injury, because plaintiff’s premises are rendered less desirable or less valuable, ymere no physical damage has been done to the property or no personal discomfort sustained by the occupants, a ground for private action. (Lansing v. Smith, 8 Cow., 146, 167; Ricket v. Metro. Ry. Co., 5 B. & S., 149.) It may be quite difficult to lay down any general rule. But I think it is safe to say, as is said by Wood, it is not enough that it diminishes the value of surrounding property. It is not enough that it renders other property less salable, or that it prevents one from letting his premises for as large a rent as before, or to as responsible or respectable tenants. (Wood on Nuisances, 4; Bigelow Ldg. Cas. on Torts, 467, et seq.) In this case there are alleged no offensive sights or sounds from defendant’s house, but the injury is caused because the existence of the nuisance gives the neighborhood a bad name. I do not think this is sufficient injury to plaintiff to enable him to maintain this^ action. But there are reasons of public, policy and propriety why in my judgment this action should not be maintained by the plaintiff. The house kept by defendant is a nuisance, not because it is a source of discomfort to the immediate neighborhood, but because its probable and natural consequence is harmful to the social and moral welfare of the public. It is a nuisance because it is a crime, and it can only cease to be a nuisance when it is abated. I do not think that courts of equity are the proper tribunals in which to do this. The usual and customary means, and those [163] always heretofore employed, are set in motion by the courts which administer the criminal law, whose machinery is sufficient to give to the community full relief in' a case of this hind, and at the same time to administer such punishment as will prevent the recurrence of the evil. It is the duty of the plaintiff to apply to those tribunals to which the law has given the power not only to punish the guilty persons, but tp abate the nuisance (Code Grim. Proc. § 953), and to execute its judgment to that effect. I cannot doubt that if the plaintiff, and all persons aggrieved by the existence of such places, would resort to the criminal courts,' the law would be promptly and rigorously enforced. At all events the duty of dealing with offenses of the kind charged against defendant is confined to the criminal courts, and should not be assumed by, nor imposed upon courts of equity. The case of Hamilton v. Whitridge (11 Md., 128) may possibly, be sustained as an exercise of the power of a court of equity to prevent the erection of a nuisance, but I do not think it is an authority for the issue of a mandatory injunction to punish a crime already committed, or to prevent the commission of a new crime,, or to abate a nuisance which can be abated by the judgment of the criminal court. The motion to vacate the injunction must be granted, but I shall give no costs of the motion. At the General Term the order dissolving the injunction was affirmed upon the opinion delivered at the Special Term, after hearing Quincy Van Voorhees for the appellant, and O. M. Allen for’ the respondent. Judge Barker dissenting and delivering the following opinion: