Mayor of Hudson v. Thorne

7 Paige Ch. 261, 1838 N.Y. LEXIS 308, 1838 N.Y. Misc. LEXIS 78

• Court: New York Court of Chancery
• Decided: September 18, 1838
• Status: Published

Opinion

The Chancellor.

The ordinance of the common council in this case is entirely directed against the erection of the building, and not against its occupation in such a manner as to render it dangerous in the promotion or originating of fires. And I infer from the affidavits that the ordinance was so framed for the purpose of merely preventing the erection of such buildings; as it appears there were such buildings already in existence, not only in other compact parts of the city but also within the prohibited limits, the occupation of which for the storing and pressing of hay the common council did not intend to restrain. It is not necessary, therefore, for me to inquire whether the common council, by the city charter, have the power to pass a by-law prohibiting the storing or pressing of hay within the compact parts of the city, as a business or manufacture which is dangerous in causing or promoting fires. I am satisfied, however, that under the provisions of this charter the legislature never intended to give to the common council the power to restrict the erection of wooden or frame buildings within the city, or to limit the size of buildings which individuals should be permitted to erect on their own premises. And as the ordinance is an attempt to exercise such a power only, it is inoperative and void. If the manufacture of pressed hay within the compact parts of the city is dangerous in causing or promoting fires, the common council have the power expressly given by their charter to prevent the carrying on of such manufacture ; but as all by-laws must be reasonable, the common council cannot make a by-law which shall permit one person to carry on the dangerous business, and prohibit another, who has an equal right, from pursuing the same business. Neither have they the right to permit the dangerous manufacture to be carried on m buildings already erected, and to prohibit these defendants whose building was destroyed by an incendiary, from rebuilding the same for the purpose of carrying on a manufacture which is permitted to others.

Again ; it is no part of the business of this court to enforce the penal laws of the state, or the by-laws of a corporation, by injunction, unless the act sought to be restrained is a nuisance. And it is nowhere alleged in this bill, that the manufacture of pressed hay within the compact parts of the city of Hudson, in a building more than thirty feet square, is in itself a public nuisance. If it is so, the complainants will probably have no difficulty, upon an ordinance properly framed, or in a proceeding by indictment, to suppress the carrying on of the illegal business without the aid of the strong arm of this court. Upon the whole, I am satisfied that this bill furnishes no sufficient ground for the interference of the court by a preliminary injunction. And even if the case made by the bill was prima facie sufficient to entitle the complainants to relief, it was a case in which it was improper for the master to grant an injunction ex parte, and without requiring the complainants to give security to pay ihe injury which might be caused by the injunction, or at least requiring them to give their own bond, so as to make themselves responsible for the damages which the defendants might sustain by the injunction, if it should afterwards appear that the complainants xvere in the wrong. (Sullivan v. Judah, 4 Paige’s Rep. 444.) The ihjunctioa must therefore be dissolved with costs.