
    Thomas Maloney, Respondent, v. Simon Katzenstein, Appellant.
    First Department,
    December 30, 1909.
    Injunction —nuisance — temporary injunction denied.
    Where a plaintiff sues for §500 damages and a permanent injunction restraining the defendant from maintaining a nuisance by bringing meat scraps, bones, etc., on his premises, he is not entitled to an injunction pendente lite, restraining the defendant from carrying on his business, where he has done so for nineteen years without objection, and there is no claim that he is not responsible for any damage recovered in the action.
    Under the circumstances it cannot be said that the plaintiff will be irreparably damaged if the defendant be permitted to continue his business until the action be tried and the rights of the parties determined in the regular way,1 while on the other hand it might' be a grave hardship on the defendant to require him to give up business pending the action.
    
      .Appeal by the defendant, Simon Katzenstein, from an order of the Supreme Court, made at the New York Special Term, dated the 16th day of September, 1909, and entered in the office of the clerk of the county of New York, granting an injunction pendente lite.
    
    
      Abraham B. Schleimer, for the appellant.
    
      Bruce R. Duncan, for the respondent.
   McLaughlin, J.:

Plaintiff is the owner of a four-story tenement house in the city of New York. The defendant for some years has. been in possession of adjoining premises. The complaint alleges that for some two years past'defendant has been in the habit of bringing upon his premises scrap meats, meat bones, fat and refuse, which he sorted and left uncovered in barrels and otherwise, from which noxious odors were emitted, attracting flies, which carried with them disease and contagion, and by reason of which facts the value of plaintiff’s premises had been greatly damaged. The judgment asked is an injunction restraining the continuance of the alleged nuisance, together with damages. v

Upon the complaint and affidavits in support of its allegations the plaintiff obtained the. order appealed from, which enjoins the defendant during the pendency of the action from bringing upon his premises, and “ from keeping, mixing and sorting out, and allowing to be and remain thereupon, scrap meats, meat bones, fats and refuse, and from causing and permitting the odor therefrom to penetrate into and a’pout the building and premises of the plaintiff.”

It appeared from the papers used in opposition to the motion that the defendant had carried on the same business upon the premises occupied by him for some nineteen years without objection or complaint from any source. The business carried on by the defendant is not in and of itself unlawful, and it does not satisfactorily appear, when all of the papers used upon the motion are considered, that such business cannot be carried on without resulting in a nuisance. Yet the^ order appealed from absolutely prohibits the defendant from carrying on the business at all during the pend^ ' ency of the action. This ought not to be done until after a trial of the issues be had, when the merits of the controversy can be investigated and determined.- (Chamberlain v. Douglas, 24 App. Div. 582; Saal v. South Brooklyn R. Co., 122 id. 364.)

Not only this, but plaintiff’s right to an injunction in any event is seriously disputed, and that is the issue which is involved in the action, and necessarily must be determined after a trial. Injunctions pendente Hie, “ which in effect determine ■ the litigation, and give the same relief which it is expected to obtain by the judgment, should be granted with great caution, and only when necessity requires.” (Bronk v. Riley, 50 Hun, 489; West Side El. Co. v. Consolidated Subway Co., 87 App. Div. 550.) Here no such necessity was shown. Plaintiff claims only $500 damages for the maintenance of the alleged nuisance during the past two years or more, that he has been in possession of the adjoining premises, and there is no claim that.-the defendant is not'and will not be responsible for any damages that may be recovered in the,action. Under .such circumstances it cannot be said that the plaintiff will be irreparably damaged if the defendant is permitted to continue his business until the action can be tried and the' rights of the parties determined in the regular way. On the other hand, it might be a grave hardship, attended with great loss to the defendant, to be obliged to give up during the pendency of the action a business which he has carried On for something like nineteen years.

The order appealed from, therefore, must be reversed, with ten dollars costs .and • disbursements, and the motion denied, with ten' dollars costs.

. Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Order révérsed, with ten dollars costs and disbursements, and motion- denied) with ten dollars costs.  