Grant v. Johnson 272 A.D.2d 968

This is an appeal from an order of the Special Term confirming, the report of a referee who was appointed by the Special Term to take evidence with respect to an order to show cause returnable at Special Term, on the 26th day of October, 1945, to adjudge the defendants guilty of contempt for violating and disobeying the order of the court granted on September 5, 1941. It appears that in the spring of 1941 the defendants-respondents erected kennels and an animal hospital, in which were housed dogs and cats, fifty feet from the dining room of the Grant House. An action was commenced by the plaintiffs-appellants to enjoin the defendants .from -continuing the nuisance which was occasioned by the barking, offensive odors and noise from said kennels and hospital. After the action was commenced the parties entered into a consent injunction and an order was entered upon said injunction restraining the defendants from operating the dog kennels on the site to which they were to be removed as fo noise and odors emanating therefrom. The consent injunction also restrained the defendants from operating an animal hospital so as to produce offensive odors and noise and no dog was to be harbored in said hospital. The conditions of this consent injunction were violated by the barking of dogs from the kennels on the site to which.they were removed and dogs were harbored in the hospital which was not removed, but remained fifty feet from the dining room of the Grant House. The nuisance continued to be such that in the judgment of a reasonable man it interfered with the comfort and rest of persons of ordinary sensibilities and of the rights of neighbors. The defendants are in contempt of the order of the Special Term, and abused the mandate of the court as provided in subdivision 2 of section 753 of the Judiciary Law. The court finds as a. fact the defendants violated the injunction order. Order and judgment reversed, on the law and facts, and a fine of $100 is imposed, and the respondents shall pay the costs of the proceeding and of this appeal. Respondents shall have sixty days in which to pay the fine and comply with the other conditions specified in this order. Upon failure to comply with the conditions and pay the fine, appellants may apply to this court at the September, 1947, Term for further order in the premises. Heffernan, Brewster, Foster and Russell, JJ., concur; Hill, P. J., dissents, and votes to affirm. [See post, p. 1085.]