Lillian Obradowitz, Respondent, v. Edward V. Odell, Appellant

Lillian Obradowitz, Respondent, v. Edward V. Odell, Appellant. First Department, February 4, 1916. Huisance — when maintenance of bulletin board at entrance to building should not be enjoined — evidence. The proprietor of a hair dressing and manicuring parlor, occupying rooms leased on the first floor of a building, is not entitled to injunctive relief, restraining another lessee, operating an employment agency on an . upper floor, access to which is had through a hall separated from the first establishment by a wall, from maintaining on one side of the hallway at or near the entrance, with the consent of the landlord, a bulletin board of positions to be filled and wages to be paid, upon the ground that such board at times attracts a large number of people which interferes with free access to and from her premises, where it does not appear that crowds gathered so as to create a public nuisance or so as to interfere with customers desiring to enter or leave her place of business. Before a party can be enjoined from using his own property for a legitimate business, the proof must clearly establish that the use is calculated to and does, in fact, deprive another of the use of his property to his damage. Appeal by the defendant, Edward V. Odell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of September, 1915, upon a decision of the court after a trial at the New York Special Term, with notice of intention to bring up for review an order entered in said clerk’s office on the 1st day of September, 1915, denying defendant’s motion for leave to submit proposed findings of fact and conclusions of law. Robert L. Luce, for the appellant. John Wallace Young, for the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: The plaintiff leased, for a term of three years from October 1, 1914, a portion of the ground floor of 825 Sixth avenue, in the city of New York, where she does hairdressing and manicuring. The premises are on the westerly side of the avenue, seven and one-half feet in width and have a show window in front. The defendant has leased for several years, from the same landlord, from year to year, in the same building, one of the upper floors — access to which is reached through a short hall to a flight of stairs which are just south of and separated from plaintiff’s premises by a wall one foot in thickness. The business carried on by the defendant is an employment agency, and with the permission of his landlord he maintains on one side of the hallway, at or near the entrance, a bulletin board of positions to be filled and wages paid. The plaintiff complains of the maintenance of this bulletin board and alleges that it at times attracts a large number of people, which interferes with free access to and from her premises. She brought this action to perpetually enjoin the defendant from maintaining such board and also for damages. She had a judgment enjoining the defendant, during the term of her lease, from maintaining the bulletin board in its present position, and also for $500 damages. Defendant appeals. It is sought to sustain the judgment awarding injunctive relief under the authority of Elias v. Sutherland (18 Abb. N. C. 126) and Jaques v. National Exhibit Co. (15 id. 250), but I think the proof failed to bring the case within the rule laid down in these authorities, and the one recently decided by this court (Shaw’s Jewelry Shop, Inc., v. New York Herald Co,, 170 App. Div. 504). The maintenance of the bulletin board by defendant is not calculated, from its situation and surroundings, to draw a large crowd of people and thus create in a public street a nuisance, or to seriously interfere with access to and from plaintiff’s premises, nor does it do so. The purpose of the bulletin board is to attract the attention of persons desiring positions, just the same as goods displayed in plaintiff’s show window are for the purpose of attracting would-be customers, and one can no more be said to be a nuisance than the other. The proof fails to show the collection on the sidewalk in front of plaintiff’s premises of such a number of people as to seriously interfere with pedestrians or with customers desiring to enter or leave plaintiff’s establishment: The use to which the defendant is putting his premises is not an unreasonable one, and the bulletin board is maintained with the consent of his landlord. There is not a particle of proof which would- justify a finding that the plaintiff has been or will be damaged by the maintenance of this board. Before one can be enjoined from using, for a legitimate business, his own property, the proof must clearly establish that the use is such as is calculated to and does, in fact, deprive another of the use of his property, to his damage. The judgment appealed from is, therefore, reversed and the complaint dismissed, with costs. Order to be settled on notice, when the reversal of findings of fact and conclusions of law and the making of new ones to conform to this opinion will be passed upon. Olarke, P. J., Latjghlin, Scott and Page, JJ., concurred. Judgment reversed and complaint dismissed, with costs. Order to be settled on notice.