
    GILFORD v. BABIES’ HOSPITAL.
    
      N. Y. Supreme Court, First District, Special Term;
    
      June, 1888.
    
      JTuisance; injunction against maintenance of hospital in residential locality.] A hospital for the care of sick infants, including such as might after admission develop contagious disease, in the residential part of a great city, although not a nuisance per se, may by reason of features inseparable from its maintenance, including the noise of patients, their advent, removal and death, with its consequences, and the probabilities of the presence of contagious disease, make a proper case for an injunction against it.
    
      The same.] In such case there can be no definite or fixed standard to control every case in any locality, the question being one of reasonableness or unreasonableness in the use of the property, which — is largely dependent upon the locality and its surroundings. Covenant against nuisances in deed of real property.] The maintenance of a hospital for the care of sick infants, including any who may develop after admission, contagious disease,—Held, a violation of the ordinary covenant against nuisances contained in a prior deed affecting the property, where the covenant included “ any other building, trade or business which may be dangerous, injurious or offensive to the neighboring inhabitants.”
    Trial by the court.
    This action was brought by Thomas B. Gilford against The Babies Hospital of the city of New York to restrain the defendant from establishing and maintaining a hospital for babies in the building situated at the north-east corner of Lexington avenue and Forty-fifth street in the city of New York. The facts are sufficiently stated in the opinion.
    
      Hayes & Greenbaum, for plaintiffs.
    I. The charitable mature of the work undertaken by the defendant and its necessity will not justify the use of the property in question (Wood on Nuisances, p. 467, § 446; Id. p. 498, § 448).
    II. The plaintiff is entitled to maintain an action in equity to restrain the commission of the.nuisance instead of waiting to recover damages at law (Attorney-general v. Steward, 20 N. Y. Eq. 415; Duncan v. Hayes, 22 Id. 25 Atlantic Dock Co. v. Leavitt, 50 Barb. 135; Wolcott v Melick, 3 Stockt. (N. J. Eq.) 204; Pollock v. Lester, 11 Hare, 266).
    III. The proposed use of the building by defendant will be a nuisance (Walter v. Selfe, 4 Eng. L. & Eq. 15, 20; Campbell v. Seaman, 63 N. Y. 568, 576; Bier v. Cooke, 37 Hun, 38; Fish v. Dodge, 4 Denio, 311; Brady v. Weeks, 3 Barb. 157; Ross v. Butler, 19 N. J. Eq. 294; Catlin v. Patterson, 10 N. Y. State Rep. 724; Carhart v. Auburn. Gas Light Co., 22 Barb. 297, 312); the following have in special cases been held to b'e nuisances: a swine stye (9 Coke's Rep. 59); a lime kiln (2 Roll. 141); a dye-house (Hutt. 136); a tallow chandlery, a furnace (Cro. Car. 510); a Brew-house (2 Roll. Ab. 139; Hutt. 136); a smelting-house (1 Roll. 89); a smith forge (Lut. 70); a livery stable (2 Geo. 425); a tannery (Thomas v. Brackney, 17 Barb. 654); Wolcott v. Melick, 3 Stockt. 9 N. J. Eq.) 204,208; Baines v. Baker, Amble, 158; Managers of Metropolitan Asylum District v. Hill, 44 L. T. R. 653; Wood on Nuisances, ed. of 1883, § 66.
    IV. The threatened act of the defendant will be a violation of the covenant restricting the use of the premises. (Brouwer v. Jones, 23 Barb. 153; Barrow v. Bichard, 8 Paige, 351; Trustees of Columbia College v. Lynch, 70 N. Y. 440, 446: German v. Chapman, 26 Weekly Rep. 149; rev’g s. c., 37 L. T. R. 265; Gutteridge v. Munyard, 7 Carrington & P. 129; Rolls v. Miller, L. R. 27 Ch. Div. 71; s. c., 53 L. J. Ch. Div. 682; Bramwell v. Lacy, 40 L. T. R., N. S. 361; s. c., L. R. 10 Ch. Div. 691; Portman v. Home Hospital Assoc., L. R. 27 Ch. Div. 81, n.; 50 L. T. N. S.. 599, n.; Flanagan v. Hollingsworth, 2 How. Pr. N. S. 391; Baker v. Ludlow, 2 Johns. Cas. 289; Smelting Co. v. Richardson, 3 Burr. 134; 2 Parsons on Contracts, p. 516; Musgrave v. Sherwood, 23 Hun, 669; Schenck v. Campbells, 11 Abb. Pr. 292).
    
      Carter, Rollins & Ledyard, for defendant.
    I. The hospital in question will not constitute in its operation, a nuisance (Baines v. Baker, Ambler, 158; Anonymous, Atk. 750).
    II. The. proposed hospital will not be a nuisance by reason of the manner in which it will be carried on. To support the action on that theory the plaintiff must show not. only that the hospital may, but that in the nature of things,, it necessarily must be so carried on as'to constitute a nuisance (Wolcott v. Melick, 3 Stockt.. (11 N. Y. Eq.) 204; Coker v. Birge, 9 Ga. 424; Rouse & Smith v. Martin &; Flowers, 75 Ala. 510; Ray v. Lynes, 10 Id. 63; Adams Eq. 7th Am. ed. 211; Rhodes v. Dunbar, 57 Pa. St. 274; Attorney v. Steward, 20 N. J. Eq. 415; Duncan v. Hayes, 22 Id. 25; Jaques v. National Exhibit Co., 15 Abb. N. C. 250-253; Harrison v. Good, L. R. 11 Eq. 338; Kingsbury v. Flowers, 65 Ala. 479; High on Inj. 743).
    III. The fact that the proposed use of the premises will1 be disagreeable will not authorize the injunction (Butter-field v. Klaber, 52 How. Pr. 255, 258).
    IY. The proposed use is not a violation of the covenant against nuisances (Musgrave v. Sherwood, 23 Hun, 669; Atlantic Dock Co. v. Leavitt, 50 Barb. 135; aff’d in 54 N. Y. 35; Atlantic Dock Co. v. Libby, 45 Id. 499; Flanagan v. Hollingsworth, 2 How. Pr. N. S. 391.)
   Beach, J.

In Lexington avenue, at Forty-fifth street,, the defendant has purchased a house, originally a dwelling, under a restrictive covenant, and proposes to there conduct a hospital for the care of sick infants, including any who may develop, after admission, contagious disease.

The plaintiff, owner of a contiguous dwelling, brings suit for a decree enjoining the business, because a nuisance and a breach of the restrictive clause. The locality is residential.

I think the plaintiff has undoubted right to file the bill upon the first ground ; there cannot be doubt that the second presents a serious legal question (Atlantic Dock Co. v. Leavitt, 50 Barb. 135; Wood on Nuisances, § 1).

A business certain to bring material injury to others is, Z apprehend, a nuisance per se. One where material injury may be inflicted on others, dependent upon the manner of prosecution, is not a nuisance per se, but requires clear proof •showing that the mode of conduct will, in reasonable judgment, bring material harm to others. If a case is thus made out, the court will grant relief by injunction.

There are cases in the books where the proofs or the affidavits upon motion have fallen short of this standard, and the writ pendente lite and by decree has been refused, until after successful suit at law. The adjudications upon motions are to a certain extent inapplicable here, the evidence being before the court.

In my opinion the hospital is not a nuisance prima faeie. While not within that class, there are general features inseparable from its maintenance proper for consideration upon the contention of its being shown a nuisance from the way of management. In these are included the noise of patients, their advent, removal and death, with its consequences. From the evidence appears the reasonable probability of con. tagious disease, provided for by a wise provision, although limited to cases to develop after reception. While this may diminish the number, it does not remove the important factor. The locality is shown wholly devoted to private residences, until this most laudable undertaking selected the house for its accomplishment.

The learned counsel have cited many adjudications, and the subject is thoroughly treated in Wood’s Law of Nuisances. It seems unnecessary to specify cases, because each one differs from most others in facts. In Boss v. Butler, .(19 N. J. Eq. 294, 306) the court states a correct conclusion. “ In fact no precise definition can be given ; each case must be judged of by itself.” In Wood’s text book, it is well -said, at section 9 : “ The locality, the condition of property, and the habits and tastes of those residing there, divested of any fanciful notions, or such as are dictated by 1 dainty modes and habits of living,’ is the test to apply in a given case. In the very nature of things there can be no definite or fixed standard to control every case in any locality. The question is one of reásonableness or unreasonableness in the use of property, and this is largely dependent upon the locality and its surroundings.”

To my mind the hospital is not a reasonable use of property, considering the locality and surroundings. The -care of sick infants, so to speak, in gross, brings danger to the youthful members of families living near. The aggregation multiplies the risk of ordinary existence, whatever may be the degree of care taken. Who .would willingly submit his child to such chance ? and, not being called upon to do so by the necessities of ordinary life, the imposition becomes an invasion of right. This is not a harsh application of the rule, because numberless locations are easily attainable where the beneficent charity could do its work with injury to none.

Then, too, this site was selected with full notice from a restrictive covenant in the deed. That, too, I think fatal to •defendant. “ No tenement house, livery or other stable, slaughter house, butcher or smith shop, forge, steam engine, foundry, manufactory of metals, glue, varnish, vitriol, turpentine or ink, or any brewery or distillery, or any other building, trade or business which may be dangerous, injurous or ■offensive to the neighboring inhabitants, shall be built, allowed or carried on on the above granted premises.” This is an express agreement the defendant must perform. If it is not sufficiently broad in its terms to protect adjacent owners then nothing short of omniscient designation will do so. The effect should not be diminished by legal refinement or argumentative clipping, but its terms should meet with a just yet not a broadening interpretation. I am inclined to think there was error on the trial in excluding proof claimed to show a depreciating effect upon surrounding property. It may well have been competent under the head of “ injury to-neighboring inhabitants.” The court has invariably enforced such covenants, save when the character of the contiguous-property has wholly changed in use from the original design. I am unable to read this one without a first thought of its preventive application. Neither does the rule of noscitur a sociis lessen its legal force. The hospital, even if not dangerous, is injurious and offensive, in the same way as a tenement house, livery or other stable, butcher shop or brewery. The rule calls only for similitude in the nature of the injury or offense, not the particular manner or means of its convej'ance.The tenement may bring crowd, turbulence and contagion so may the hospital; the others may give offence to the senses, so may this business as well.

Decree for plaintiff, with costs. 
      
       Aff’d in 54 A. T. 35; s. c., 13 Am. R; 556.
     