
    Louis Grimm, Appellant, v. Rachel I. Krahmer, Respondent.
    First Department,
    April 20, 1906.
    Injunction — covenant not to erect offensive establishment — injunction to restrain erection of veterinary stable refused pendente lite.
    An owner of land subject to a covenant not to erect, suffer or permit any “ brewery, distillery, slaughterhouse * * * or any other dangerous, noxious or offensive establishment whatsoever ” will not be restrained pendente lite from, erecting a stable for veterinary purposes when it is shown that he has maintained a similar stable for five years, and that the new stable which he intends to erect will be an improvement upon the old.
    The question of a right to injunction under such covenant should be left to the' trial at Special Term and should not be granted pendente Ute upon affidavits.
    Appeal by the plaintiff, Louis Grimm, from an order of the Supreme Court, made at the Bew York Special Term and entered in the office of the clerk of the county of Bew York on the 5th day of September, 1905, denying the plaintiff’s motion for an injunction pendente lite restraining and enjoining tlxe defendant from constructing, erecting or maintaining on the premises belonging to the defendant, located on the northerly side of East One Hundred and Forty-eighth street, city of Bew York, any building or buildings used or to be used as a stable and veterinary hospital and from erecting, constructing or maintaining, suffering or permitting to be erected, constructed or maintained any dangerous,, noxious or offensive establishment whatsoever.
    
      Samuel J. Siegel, for the appellant.
    
      George W. Wager, for the respondent..
   Ingraham, J.:

The defendant is the owner of certain property located" on the northerly side of One Hundred and Forty-eighth street between Brook and St. Ann avenues, in the borough of The Bronx, city of Hew York, and the plaintiff is the owner of a -piece'of property adjoining that of "the defendant. The plaintiff alleges .that she is erecting on her property six apartment houses, such to be occupied by fifteen families; that the defendant is the owner of a tract of land adjoining the plaintiff’s premises on the west; that the premises belonging to the plaintiff and to the defendant, together with -other property, constitute the block of land bounded by Brook and .St. Ann’s avenues and East'One Hundred and Forty-eighth and .East One Hundred and Forty-ninth streets; that this block was, prior to the 22d day of February, 1864, owned in fee by one Lewis B. Brown ; that on said twenty-second day of February Brown com veyed the premises now owned by the defendant by a déed which contained the following covenant: And the said party of the sem ond part for his heirs and assigns doth hereby and by the acceptance of these presents covenant, promise and agree to and with the said parties of the first part, their heirs and assigns, that neither he, the said party of the second part nor his heirs or assigns shall at any time hereafter erect, suffer or permit on the premises hereby granted or any part thereof any brewery, distillery, slaughterhouse,, soap, candle, starch, varnish, vitriol, glue, ink .or turpentine factory o.r any factory for tanning, dressing or preparing skins, hides, or leather or any. other dangerous, noxious or offensive establishment whatsoever. And it is understood and agreed between the parties hereto that this covenant is attached to and shall run with the land.”

Thereafter the said premises were conveyed by various conveyanees until .it vested in the defendant. It is further alleged that' Brown also conveyed the property now owned by the plaintiff subject to a similar covenant; that the defendant is about to erect upon a portion of the premises owned by her a building having a frontage on East One Hundred and Forty-eighth street of twenty-five feet and a depth of seventy feet, which is to be one story in height, and which the defendant proposes to use as a veterinary hospital or stable for the treatment of sick and diseased animals; that the business which the defendant proposes to carry on upon the premises is a nuisance and is and will be dangerous, noxious and offensive to the neighboring inhabitants and particularly the plaintiff; that it will gather together a number of horses and animals of a similar nature suffering from the ills attendant upon this specie of animals; that it will pollute and deteriorate the atmosphere of the neighborhood and the same will become offensive, and objectionable to the residents of the neighborhood and to the plaintiff. There was an affidavit of a physician submitted by plaintiff, who deposes that in his opinion the building and maintenance of a stable and veterinary hospital for the treatment of horses and other animals suffering from diseases akin to such animals must inevitably be a menace to the health of the persons living in its vicinity; that the contagions diseases of horses or other animals might be -transmitted to human beings coming in contact with the air of the hospital and that children might particularly become infected; that the stench and odor from such an establishment would most emphatically be noisome, noxious and offensivo and distinctly unhealthful; that the noises attendant upon the treatment or putting to death of such animals would be disturbing to the' peace and quiet of the people of the vicinity.

The defendant interposed an answer admitting that she is constructing a brick and stone building on the premises owned by her to be used as a veterinary hospital; that during the past five years' there has been a building on the premises in question which has during the whole of said period been used as a stable by the defendant in connection with the defendant’s husband’s business of veterinary.surgeon; that the defendant is erecting in lieu of the old building a brick and stone structure of one story, which is to be highly sanitary in its construction and in nowise a violation of any restriction that may exist upon the use of the said premises.

There was other evidence of those living in the neighborhood 'that the business carried on by the defendant’s husband is not at all noxious or offensive and that the construction of the new building would be a great improvement upon the one already on "the premises. There is no evidence that the business carried on by the defendant’s husband for the past five years has been, noxious or. offensive' so as to come" within the restriction contained in the covenant. .Whether', or not the proposed building will be a “ dangerous, noxious or offensive establishment,” can only be disclosed when it is- erected and used. The covenant is that the grantee shall not at any time erect, suffer or permit On the premises any brewery, etc., or any other dangerous, noxious or offensive establishment whatsoever.' This.covenant is not one that restricts a business which would be injurious or offensive .to" the neighboring inhabitants; but after specifying several specific, use's to ’which the property is not to be put couples with such restricted uses a,ny other dangerous, noxious or offensive establishment whatsoever, and-while the construction of .this covenant would not be governed by the general laws, as to nuisances, but by the force and effect of the covenant (Rowland v. Miller, 139 N. Y. 93), there must be evidence to justify the finding that the building or business to be conducted by the defendant is dangerous, noxious or offensive.

The question:as to the nature of the defendant’s business and as to whether or-not it is within the covenant can be determined upon the trial at Special Term when the nature of the defendant’s' business can be inquired' into and the court upon such an investigation can. then restrain any use of the building which would be .a violation of the covenant. But upon these affidavits I think that the'court below was justified in refusing to grant a temporary injunction and leaving the question to be determined upon the trial.

The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements. ,

McLaughlin, Laughlin, Clarke and Houghton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. Order filed.  