Mary A. W. Heaton and Others, Respondents, v. Flavius Packer and Others, Appellants

Mary A. W. Heaton and Others, Respondents, v. Flavius Packer and Others, Appellants. First Department, April 8, 1909. Nuisance — suit to restrain use of building for insane asylum — apprehended evils — demurrer — future events not admitted. While an insane asylum may be so conducted as to become a nuisance it is not, being a necessity, a nuisance per se. Thus a landowner in a residential district cannot maintain a suit to restrain the use of a neighboring building as an insane asylum by merely alleging various evils which the plaintiff anticipates will result in case the building is used for that purpose. An apprehended nuisance will not he enjoined unless it he apparent or inevitable that the proposed use of the property will actually result in a nuisance. Matters which a plaintiff states will happen in the future are not necessarily statements of fact which are admitted by demurrer. It is for the court to say whether from the nature of things they will probably and necessarily happen. Appeal by the defendants, Flavius Packer and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 13th day of January, 1909, upon the decision of the court rendered after a trial at the Hew York S23ecial Term overruling the defendants’ demurrer to the complaint. George G. Austin, for the appellants. John Ross Delafield, for the respondents. [MAJORITY — Houghton, J.:] Houghton, J.: The complaint alleges that the 2>laintiffs own and oecu2>y lands in the borough of the Bronx in the city of Hew York adjoining to and abutting upon property owned by the defendants; that the lands occujded by the plaintiffs are in a high class residential portion of the city of Hew York and are suitable and valuable for residence purposes only; that the defendants have purchased the lands described in the complaint for the purpose of establishing, and are now erecting and altering the buildings thereon for the purpose of using them for a hospital for the insane, and the housing, keeping and caring for a large number of insane persons. The complaint further sets forth a large number of dangerous and disagreeable things which will occur from the establishing and maintaining of such a hospital for the insane, amongst others, that it will greatly depreciate the value of jdaintiffs’ property for residential purposes and destroy the neighborhood as a residential section, and make it dangerous for women and children to go iqmn the streets adjacent to the hospital, and maké the residents nervous and ill from seeing unseemly sights and hearing unseemly noises. The relief asked is not that the defendants shall be restrained from the further erection and alteration of buildings, but that they shall be restrained from using them for the purposes of maintaining a hospital for the insane. The defendants demurred to the complaint on the ground that it failed to state a cause of action, and on that demurrer being overruled appealed to this court. We are of the opinion that the demurrer should have been sustained. Hospitals and insane asylums are necessities, and while they may be so conducted in certain localities as to become nuisances they are not nuisances per se. (Gilford v. Babies’ Hospital, 21 Abb. N. C. 159; 29 Cyc. 1175.) The plaintiffs concede that the defendants have a right to erect their buildings on their own laud as they may choose, and they do not ask that their erection be restrained. By their allegations, however, they, do set forth a large number of things which they apprehend will happen when the asylum shall be established and persons of unsound mind received for treatment. If all should actually happen which the plaintiffs now imagine will happen, possibly they might have good cause for complaint. The defendants’ institution, however, may be so constructed and so managed that none of the evils which the plaintiffs apprehend will ever occur. While the establishment of a lunatic asylum in the plaintiffs’ neighborhood may not be a desirable thing, still the evils apprehended do not necessarily arise from its maintenance and are not inherent to it like those coming from a slaughter house for example. Following the English rule the chancellor in Mohawk Bridge Co. v. Utica & S. R. R. Co. (6 Paige, 563) said: “ If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief where the complainant’s right is not doubtful, without waiting for the result of a trial. But where the thing sought to be restrained is not in itself noxious, but only something which may, according to circumstances prove to be so, the court will refuse to interfere until the matter has been tried at law by an action.” The rule sanctioned by the authorities and the text books with respect to the restraining of an apprehended nuisance by temporary or permanent injunction, is that an injunction will not be granted unless it is apparent or inevitable that the proposed use of the property will actually result in a nuisance. (People v. Canal Board of N. Y.,55 N. Y. 390; Morgan v. City of Binghamton, 102 id. 500; Stilwell v. Buffalo Riding Academy, 21 Abb. N. C. 472; High Inj. [3d ed.] § 742; Wood Nuis. [2d ed.] § 797.) The plaintiffs urge that the various things which they have alleged will happen stand admitted by the demurrer. The difficulty with applying this rule is that from the nature of the allegations they are not allegations of existing facts, but only allegations of what will transpire in the future. Where allegations of this character are made it cannot be that the demurrer admits that the things will actually occur as alleged, but it is left open for the court to say whether or not from the nature of things they probably and necessarily will happen. In our view the demurrer does not admit that all the disagreeable and dangerous things set forth in plaintiffs’ complaint will actually arise. Nor does it appear to us that they will necessarily arise from the use to which the defendants propose to put their property. It follows, therefore, that the plaintiffs have failed to state a cause of action entitling them to an injunction. The defendants criticise the complaint in that it does not allege how close to defendants’ premises the plaintiffs’ lands are situated, and intimate that the locality is unimproved with plenty of room for any kind of structure or business. However that may be, in our view the demurrer to the complaint was improperly overruled. The interlocutory judgment overruling the demurrer should be reversed and the demurrer sustained, with leave to the plaintiffs to amend upon payment of costs. Patterson, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred. Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiffs to amend on payment of costs.