
    Morris Newgold, Respondent, v. Childs Company, Appellant.
    First Department,
    December 15, 1911.
    ‘Nuisance—rights of landowner in use of premises — private nuisance question of fact — injunction pendente lite.
    A landowner making a reasonable use of Ms property cannot be charged with a private nuisance. But if the use be unreasonable and results in substantial mjury to an adjoining owner, there is an actionable nuisance.
    Whether a given use is reasonable or not is a question of fact, dependMg upon the circumstances.
    The reasonableness of a use is a question for determination upon trial. It should not be determined in advance on a motion for an injunction pendente lite, where the defendant is able to respond in damages, except when the plaintiff’s right to relief is clear and beyond dispute.
    Thus, a defendant will not be enjomed pendente lite from operatmg a restaurant from which smoke and soot are alleged to be discharged upon the plaintiff’s premises, where he is able to respond M damages and offers to remove the cause of the complaint at his own expense but the plaintiff refuses to grant Mm the privilege necessary to enable him to do so.
    Appeal by the defendant, the Childs Company, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the l-3th day of July, 1911.
    The defendant occupies a building which it operates as a restaurant. Plaintiff owns a hotel, part of' which is directly in the rear of defendant’s restaurant. Plaintiff’s building is ten stories high, while defendant’s restaurant is only three stories in height. Defendant maintains in the basement of its restaurant certain steam boilers, the draft flue of which extends a short distance above the rear of the restaurant building. Defendant has also erected upon said roof a ventilating fan and pipe. Plaintiff alleges that the smoke, soot and dust from the pipe and flue constitute a nuisance and prays that defendant be enjoined from using the chimney and exhaust pipé in the maner in which it now does.
    
      Joseph Diehl Fackenthal, for the appellant.
    
      John Bogart, for the respondent.
   Scott, J.:

Defendant appeals from an order granting an injunction pendente lite.

The action is to enjoin -the use by defendant of its own premises in such a manner as to constitute a nuisance- as to plaintiff’s property. The rule respecting the use of one’s own premises where it unfavorably affects adjacent premises is well settled. If the úse is reasonable there can he no private nuisance, hut if the use is unreasonable and results in substantial injury an actionable nuisance exists, and whether a given use is reasonable or not is a question of fact depending on many and varied -facts. (McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40.) That, ordinarily, is a question to he determined úpon the trial and should not he determined in advance upon a preliminary motion unless the plaintiff’s right to relief is clear and practically beyond dispute, and more especially is this true where there is no doubt suggested as to the ability of the defendant to respond in damages. The order appealed from is in effect a mandatory injunction requiring the defendant to make important structural changes in its building, or to discontinue business altogether. By the order the litigation is in. effect determined, and gives to plaintiff the same relief which he seeks to obtain by judgment. Such orders should be granted with great caution and only under exceptional circumstances. (Maloney v. Katzenstein, 135 App. Div. 224.) This is not such a case. The defendant has already offered to remove at its own expense all cause for complaint by a method which involves the acquiescence of plaintiff, and we are by no means satisfied that plaintiff was not unreasonable, under all the circumstances, in withholding his acquiescence. This is one of the questions which can best be answered at the trial.

The order should he reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Hiller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  