
    Josiah J. Russell et al., on Behalf of Themselves and Other Residents or Property Owners in the Borough of Brooklyn, Respondents, v. Nostrand Athletic Club, Inc., Appellant.
    (Argued June 8, 1925;
    decided June 12, 1925.)
    
      Nuisance — action to restrain maintenance in residential district of arena for boxing exhibitions — when judgment too broad.
    
    
      Russell v. Nostrand Athletic Club, Inc., 212 App. Div. 543, modified.
    Appeal from a judgment, entered April 21, 1925, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff upon new findings. The action was to restrain the defendant from maintaining and operating an open air arena for boxing exhibitions on the block bounded by Nostrand avenue, Sterling street, Clove road and Lefferts avenue, in the borough of Brooklyn, city of New York.
    
      John J. Fitzgerald and Abraham Lehman for appellant.
    
      George W. Tucker and Orville C. Sanborn for respondents.
   Per Curiam.

There is evidence to sustain the new findings made by the Appellate Division that the boxing matches conducted by the defendant at night constituted a nuisance in this residential section of the city, where the homes had been built and occupied long before the arena was constructed. With the weight of the evidence, we have nothing to do. The judgment, however, is too broad. The only complaint is against the boxing matches, which attract the noisy boisterous crowd; the evidence only relates to these. The judgment, however, restrains the defendant from holding “ any gymnastic or athletic entertainment or exhibition or public exhibition or show or any other similar activity in the night-time.” This would prevent any theatrical performance or any other exhibition, no matter how quiet and peaceful the performance and the spectators might be.

The judgment must be modified so as to restrain any prize fight, boxing exhibition, boxing contest, wrestling contest or any other similar activity in the night-time, plaintiffs to have the right to apply at the foot of this judgment for further relief as to any exhibition claimed to be an actiyity similar to those specifically restrained. As thus modified, the judgment should be affirmed, without costs.

His cock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ., concur; Pound, J., absent.

Judgment accordingly. •  