Martin v. City of New York

77 N.Y.S. 1013

Opinion

GIEGERICH, J.

Upon the question of the degree of smell arising from the filling in of Rilcer’s Island, the affidavits are in absolute conflict. If the defendants’ averments are to be accepted, there is no ground for an injunction, since the matter complained of is disclosed to be too inconsiderable- for denomination as a nuisance, and I find no good reason for holding that the preponderance is with the plaintiff. The system adopted by the city for the avoidance of smell would apparently suffice to minimize any possible inconvenience, and there is no warrant for my assuming that this system has not been carried out. Slight inconvenience to some individuals must sometimes result from the necessities of disposing of the garbage of a great city, and I am not prepared to say, upon the papers before me, that the existence of any serious ground of complaint has been proven by the weight of the evidence. The consequences of an injunction in this case would be too serious to be justified by the assumption that the plaintiff may have a probable cause of action, where the actual proof presented is not persuasive, and I conclude that the right to an injunction should not be determined upon these affidavits favorably to the plaintiff before trial.

Motion denied, with $10 costs.