Willis J. Chamberlain, Respondent, v. Andrew Douglas, Appellant

Willis J. Chamberlain, Respondent, v. Andrew Douglas, Appellant. Injunction—the conduct of a, legitimate business restrained only to such extent as is absolutely necessary to prevent its being a nuisance—leave to apply for a modification, granted. An injunction restraining the conduct of a legitimate business should go no farther than is absolutely necessary to protect the rights of the persons seeking the injunction. Where, in an action brought to abate a nuisance, the operation of a planing mill was absolutely restrained, the court considered that the defendant should have leave to apply at Special Term for a modification of the injunction upon giving satisfactory proof that he can and will operate the mill in such a manner as not to injure the plaintiff or constitute a nuisance in the respects complained of in the action. Appeal by the defendant, Andrew Douglas, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 11th day of August, 1897, upon the report of a referee. The plaintiff brought this action to obtain an injunction restraining the defendant from maintaining a planing mill, and operating machinery therein, in a building upon his premises adjoining the plaintiff’s, alleging the same to be a nuisance. The defense was a, a general denial and an allegation that the premises were used and occupied by the defendant in the conduct of his business. The issues raised by the pleadings were referred to a referee to hear and determine, who reported in favor of the plaintiff, and judgment thereon was entered restraining the defendant from operating said machinery by steam power and from continuing said nuisance. From this judgment the defendant has appealed. Babcock, Sperry & Van Cleve, for the appellant. Thomas J. Mangan and D. H. Carver, for the respondent. [MAJORITY — Herrick, J.:] Herrick, J.: After a careful reading and consideration of the evidence in this case, I am satisfied that the plaintiff is entitled to an injunction; the question is just how far that injunction should go. Injunctions restraining the carrying on of a legitimate and lawful business should go no further than is absolutely necessary to protect the rights of the parties seeking such injunction. When a person is engaged in carrying on such business he should not be absolutely prohibited from doing so, unless it appears that the carrying on of such business will necessarily produce the injury complained of. If it can be conducted in such a way as not to constitute a nuisance, then it should be permitted to be continued in. that manner. ^The injunction here constitutes an absolute prohibition against the defendant operating his woodworking machinery, and if it were not that the evidence offered upon the part of the defendant was to the effect that this planing mill was operated in a careful and proper manner, and it is, therefore, to be inferred that the injury complained of by the plaintiff necessarily flows from the operation of such mill, I should be inclined to modify this injunction. If, however, it is possible for the defendant" to conduct his business in such a way as to obviate the nuisance complained of in this action, he should have an opportunity to do so ; and to afford him that opportunity I think the defendant should have leave to apply to the Special Term at any time hereafter for a modification of this injunction, upon giving satisfactory evidence to the court that he can and will operate his planing mill in such a manner as not to injure the plaintiff, or constitute a nuisance in the respects complained of in this action and, with such modification or addition to the judgment herein appealed from, the judgment should be affirmed, with costs. All concurred. Judgment modified in accordance with memorandum and as so modified, affirmed, with costs.