Masso v. Hanscom Realty Corp. 254 A.D. 756

Action in equity to restrain the operation by the defendants, here respondents and appellants, of their factory and baking establishment, with adjoining garage and other facilities, in such a manner that it will not interfere with the peace, quiet and repose of persons occupying the neighboring premises of the plaintiffs because of the operation of certain revolving fans and other facilities of the defendants and because of steam and odors wafted from the defendants’ premises to those of the plaintiffs. After a trial before the court without a jury, judgment was entered awarding to the plaintiffs (1) $100 for damages for loss of rental value and (2) granting a permanent injunction restraining the continuance of the nuisance unless defendants should pay to the plaintiffs the further sum of $400 in effect as fee damages. From that judgment plaintiffs and defendants appeal. Judgment reversed on the law and the facts and a new trial granted, with costs to the plaintiffs-appellants-respondents to abide the event, on the ground that the award of damages for loss of rental value and likewise the award for fee damages are against the weight of evidence and inadequate, and that to the limited extent karain indicated plaintiffs should have received, in addition, injunctive relief, unless within ten days from the entry of the order hereon defendants shall stipulate to modify the judgment (1) so as to increase the award to plaintiffs of rental damage to $350; (2) so as to increase the award to plaintiffs as fee damages, as a condition of avoidance by the defendants of a permanent injunction, to the sum of $1,500, and (3) so that such judgment shall direct the defendants forthwith to take measures to eliminate, in so far as is reasonably possible, the nuisance to plaintiffs caused *757(a) by the noises of the loading and unloading of vehicles at defendants’ plant, and (b) by the steam which is discharged and which condenses on the adjoining property with incidental foul smells, the latter elimination to be accomplished by leading the steam in a suitable duct or ducts extending to a point ten feet above the roof of the defendants’ factory property. In the event that the defendants shall thus stipulate, the judgment as thus modified is unanimously affirmed, in so far as an appeal is taken therefrom, with costs to plaintiffs-appellants, respondents. In our opinion each money award to the plaintiffs was inadequate and the plaintiffs were entitled to the further relief indicated in the suggested modifying stipulation, which is thus suggested by us because of the intimation made by defendants’ counsel upon the argument to the effect that within reason the defendants were willing to eliminate conditions which were the subject of complaint by plaintiffs. Lazansky, P. J., Hagarty, Davis, Johnston and Taylor, JJ., concur. Settle order on notice. [162 Mise. 864.]