Sommers Mercantile Co. v. Rheinfrank House Wrecking Co.

Bischoff, J.

The affidavits satisfy me that the defendant, in the conduct of its operations in removing the structure near the plaintiff’s place of business, has not caused annoyance or injury to neighboring premises other than would be inseparable from a careful and reasonable use of the property for this temporary purpose. A large building cannot be removed without the creation of some dust, and, as would appear, the defendant is availing itself of every reasonable means of lessening the inconvenience to persons in the vicinity. As was said by Judge Andrews in Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10, 13: “ The compromises exacted by the necessities of the social state, and the fact that some inconvenience to others must of necessity often attend the ordinary use of property, without permitting which there could in many cases be no available use at all, have compelled the recognition in all systems of jurisprudence of the principle that each member of society must submit to annoyances consequent upon the ordinary and common use of property, provided such use is reasonable, both as respects the owner of the property and those materially affected by the use, in view of time, place and other circumstances.” Within this rule, upon the facts presented by both sides, the application for an injunction should not be granted.

Motion denied, with ten dollars costs.