
    NEW YORK CIRCUIT—AT CHAMBERS.
    Before Edmonds, Justice.
    Benner v. Jordan.
    Where the act complained of is not per se a nuisance, the power of the court to restrain it, by injunction, will not be exercised until the question, whether nuisance or not, has been settled, either on indictment, in an action, or on issues ordered by the court.
    In a business which had been carried on in a factory by hand-power, a change was made, and machinery was introduced for carrying it on by horse-power. It was complained, by the owner of an adjoining building, that the noise made by the new power was a disturbance to the neighborhood, and an injunction was obtained, restraining the use of the new power.
    On a motion to dissolve the injunction, the following decision was made.
   Edmonds, J.:

The only thing restrained in this case is the use of a horse-power. That power is not, of itself, necessarily a nuisance. It may be so used as to disturb no one, and in this case it is doubtful whether, in this particular case, it is a nuisance to any one. Under such circumstances, it is the well established practice of this court not to grant an injunction until the question, whether nuisance or not, shall have been determined by a jury, either on indictment, or in an action, or on issues ordered by the court. That has not been done in this case, and the injunction must be dissolved, with costs.  