JAQUES v. NATIONAL EXHIBIT CO.

JAQUES v. NATIONAL EXHIBIT CO. N. Y. Supreme Court, First District, Equity Term ; December, 1884. Injunction. —Nuisance ; private injury ; gathering crowd on SIDEWALK. A lawful business will not be enjoined as a nuisance, merely because it is undesirable and offensive to adjoining proprietors; but where, in itself or from the manner in which it is conducted, positive harm is inflicted, and the rights of others are materially affected and impaired, then the law will intervene to prevent a use by one of his own property, which sensibly lessens or destroys the enjoyment by others of their own. In order to attract attention to its display of panoramic advertisements in a large window in the second story of a building on Broadway, in the city of New York, defendant, at intervals during the day, exhibited a puppet show in the window, thereby attracting and detaining a crowd upon the opposite sidewalk in front of plaintiff’s store, which materially impeded ingress and egress to and from the store, and interfered with the transaction of their business in the usual and ordinary way. Held, that plaintiffs were entitled to have such exhibition enjoined as a nuisance. Trial by the court. George B. Jaques and another, as partners, brought this action against The National Exhibit Company, to restrain the continuance of an alleged nuisance. The plaintiffs were jewelers doing business on Broadway in the city of New York. They occupied the store on the ground floor of the building ; the store has its front twenty-five feet wide on Broadway, with two show-windows and a doorway for customers. The defendant is a corporation organized for the purpose of manufacturing and exhibiting “ panoramic and other, advertisements.” The defendant occupied the front rooms of the second story of the building on Broadway, directly opposite plaintiffs’ store. Defendant took out the front wall of the second story, placed plate glass therein, so that the whole was open to view from part of the street, and particularly from the sidewalk in front of plaintiffs’ store, and inside the window defendant constructed a frame, along the upper part and sides of which, moving advertisements were displayed. In the large central space bordered by the moving advertisements—a space fifteen feet long by ten feet high—large moving panoramas were ordinarily displayed to the public on the opposite sidewalk. At frequently recurring intervals of every day, however, the panorama was removed, and there was revealed to the public in Broadway a stage fitted up like an ordinary theatrical stage, with drop-curtains, side entrances and scenery and foot-lights. On this stage performances were given of dancing puppets, of a grotesque and ludicrous character, a dancing human skeleton, a living clown, and persons acting in characters as a soldier, a negro, and a woman, either singly or in groups, in pantomime plays. These performances occupied from ten to fifteen¡ minutes, and were repeated at various intervals during the day and evening. The stage and performance were especially arranged and devised so as to be visible to persons on the westerly half of Broadway, that is, on the opposite sidewalk, and were best seen from plaintiffs’ sidewalk. Defendant’s purpose in said show, and the natural result thereof, was to attract and collect and detain crowds of people upon plaintiffs’ sidewalk; and by that means defendant has collected at intervals during the, day and evening, and for many minutes at each time,l and has detained large crowds of people upon the' street and upon plaintiffs’ sidewalk. The crowd was frequently dense, stationary andl compact, and extended from the curbstone back to the show-windows of plaintiffs’ store. The crowd was composed, in a large measure, of idle persons, and was noisy; it obstructed plaintiffs’ sidewalk, hindering persons who came in carriages to plaintiffs’ store from crossing the sidewalk, blocked up plaintiffs’ doorway so as to keep customers away, and, prevented entrance to and exit from their store, and shut out their business doorway and windows from view of the public. Plaintiffs also alleged that the rental value of their premises had been greatly diminished and their business much damaged, and that they were deprived of quiet and comfort in their premises, and in the use of said sidewalk; plaintiffs prayed for a perpetual injunction against the so-called performances of defendant. Sullivan & Cromwell, for the plaintiffs. Butler, Stillman & Hubbard, for the defendant. [MAJORITY — Beach, J.] Beach, J. The exhibitions given by defendant attract a crowd in front of plaintiffs’ premises at intervals each day, of such size as materially impedes ingress and egress to and from their store, and interferes with the transaction of business in the usual and ordinary way. This, I think, entitles plaintiffs to the relief prayed for against a nuisance. The law is clearly stated in Doellner v. Tynan (38 How. Pr. 176). The learned justice says : “It is well settled, that if any trade or business, otherwise lawful, is carried on in such a manner as to render the enjoyment of life and property uncomfortable, it is a nuisance .... The rule of the common law, that a man shall so use his own as not to interfere, with others, extends to every act as well as to every use, and the mere lawfulness of a trade or calling will not excuse or justify the destruction of or interference with the comfortable enjoyment of his property by another.” Nothing coirld be more applicable to the case at bar, and the doctrine is amply supported by adjudications in this country and England (Fish v. Dodge, 4 Den. 311; Barrow v. Richard, 8 Paige, 351 ; Gatlin v. Valentine, 9 Paige, 575 ; McKeon v. See, 4 Robt. 449 ; Ross v. Butler, 19 N. J. Eg. 294 ; Rex v. Carlile, 6 Carr. & Payne, 636 ; Ball v. Reg., L. R. 8 Ch. App. 467 ; Benjamin v. Storr, L. R. 9 Com. Pl. 400). Benjamin v. Storr (above), is most nearly akin. The defendants loaded and unloaded goods into and from vans in the public street, and the vans materially intercepted the light from plaintiff’s shop, and access was obstructed by the horses standing in front of the door. The action was maintained, although the nuisance was a public one, because the plaintiff showed a private and particular injury to himself, beyond that suffered by the public £t large. The business of advertising is a lawful pursuit, but defendant adds thereto an exhibition for the purpose of attracting attention to advertisements, which brings material damage to the plaintiffs. A puppet show is not an integral part of defendant’s advertising business, though it may be a useful adjunct. So might be any device calculated to attract public attention. The law would not prohibit, unless the rights of others were seriously infringed. If so, then the use becomes unreasonable, because of the resulting injury. A lawful business which draws crowds of orderly persons or numbers of carts and carriages is not a nuisance, as is well said in. Ross v. Butler (above.) This may come from thronging customers and business success. The case at bar is different. The defendant employs means outside of its business, which attract and retain a crowd in front of plaintiffs’ store, to their serious detriment. Matters disagreeable, to individual taste, or trivial annoyances, are not subject to prohibition by this court. Many lawful callings, though undesirable and offensive to adjoining proprietors, should not be enjoined. When, however, in themselves, or from the manner in which they are conducted, positive harm is inflicted, and the rights of others are materially affected and impaired, then will the law intervene to prevent a use by one of his own property, which sensibly lessens or destroys the enjoyment by others of their own. Decree for plaintiffs with costs.