
    (60 Misc. Rep. 340.)
    SOMMERS MERCANTILE CO. v. RHEINFRANK HOUSE WRECKING CO.
    (Supreme Court, Special Term, New York County.
    August, 1908.)
    Nuisance (§ 7)—Removing Building.
    Where defendant, in removing a large building near plaintiff’s place of business, used every reasonable means to lessen the inconvenience to residents in the vicinity, an injunction to restrain the conduct of the work will be denied.
    [Ed. Note.—For other cases, see Nuisance, Cent. Dig. § 7; Dec. Dig. § 7.*]
    Action by the Sommers Mercantile Company against the Rheinfrank House Wrecking Company.
    Motion for injunction denied.
    Mackenzie & Burr, for plaintiff.
    . McRoughlin & Martin, for defendant.
    
      
      For other cases'see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes'
    
   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, 8 N. E. 537, 57 Am. Rep. 701:

“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 of 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 $10 costs.  