Bernard F. Garvey, Respondent, v. The Long Island Railroad Company, Appellant

Bernard F. Garvey, Respondent, v. The Long Island Railroad Company, Appellant. Railroad—a nuisance created by a turntable is not authorized by the statute— remedy in equity. A statute authorizing the creation and operation of a railroad does not authorize it to so maintain and operate a turntable situate upon its premises as to make the same a nuisance. The fact that a judgment, rendered in an action brought to restrain the use of property alleged to constitute a nuisance, and to recover damages, does not award damages, does not render the judgment inconsistent, as when the equitable powers of the court are invoked to restrain the commission of a wrong of Which it can take cognizance, it may render any judgment essential -to accomplish that end, which is warranted by the evidence. Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on. the 16th day of July, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term. The action was brought to restrain the defendant from the use of its property, which was claimed to constitute a nuisance; and also to recover money damages. Alfred A. Gardner, for the appellant. Josiah T. Marean, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The court below has found that the defendant so conducts its busi-. ness and manages its turntable, situate upon its premises, as to constitute the same a nuisance as to the plaintiff and his premises. The evidence given upon the trial tended to establish that the defendant so conducted its business as to unnecessarily cause a vibration of its turntable, which was communicated to plaintiff’s premises and caused great annoyance and damage; that this condition was greatly aggravated by casting thereon smoke, cinders and ashes, accompanied by irritating and harassing noises. The evidence warranted the court in making the finding which it did, and supports the judgment which was entered thereon. The defendant seeks its reversal by claiming that it has authority for what it did in the statute authorizing its creation and operation; and hence that no liability attaches thereto for its acts. It is not contended that there is any express power conferred in the statute authorizing it to maintain and operate the particular turntable and yard as it is now operated. But the claim is that it is within the clearly-expressed intention of the Legislature, derived from the statute. The following authorities are abundant in answer to this claim: Cogswell v. N. Y & N. H. R. R. Co. (103 N. Y. 10); Morton v. The Mayor (140 id. 207); Booth v. R., W. & O. T. R. R. Co. (Id. 267); Hill v. The Mayor (139 id. 495); Bal. & Potomac R. R. Co. v. Fifth Baptist Church (108 U. S. 317). There is no force in the suggestion that the judgment is inconsistent in not awarding damages. The equitable powers of the court may be properly invoked tó restrain the commission of a wrong of which it can take cognizance, and it may render any judgment, essential to accomplish that end,'which is warranted by the evidence. We find no error. The judgment should, therefore, be affirmed, with costs. All concurred, except Cullen, J., not sitting. Judgment affirmed, with costs.