Ruben v. Brighton Place Dairy Co.

257 A.D. 1034, 13 N.Y.S.2d 833, 1939 N.Y. App. Div. LEXIS 8973

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 1939
• Status: Published

Opinion

Judgment modified on the law and the facts by reducing the damages from $1,000 to $857 and as so modified affirmed, without costs of this appeal to either party. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made. Memorandum: The fact that the defendant unreasonably conducted its business and operated its plant and thus caused unnecessary noise both by day and night, entitles the plaintiff to relief in this case. (Russell v. Nostrand Athletic Club, Inc., 212 App. Div. 543; affd., 240 N. Y. 681; Parkhurst v. Citizens Brewing Corp., 171 N. Y. Supp. 683; affd., 187 App. Div. 963; affd., 229 N. Y. 602; Dillon v. Cortland Baking Co., 224 App. Div. 303.) When the plaintiff purchased her property a milk plant was operated upon the same premises where the defendant now conducts its business. Nevertheless, if the defendant so unreasonably conducts its business at the present time as to cause material injury to plaintiff’s property, she may recover in this action. (Bly v. Edison Electric Illuminating Co., 172 N. Y. 1, 10; Baumann v. City of New York, 227 id. 25, 30.) The plaintiff may recover damages for diminution of rentals for the six years prior to the commencement of the action. (Bly v. Edison Electric Illuminating Co., supra, pp. 12 and 16.) All. concur. (The judgment is for plaintiff in an injunction action.) Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.