
    Peck and others v. Elder and others.
    Different persons, owning separate tenement?, affected by a nuisance, may join in a suit to restrain its continuance by an injunction.
    Where during the pendency of a suit for a perpetual injunction against a business alleged to be a nuisance, the defendants are tried and convicted on an indictment for a nuisance in respect of such business ; the record of their conviction is prima facie evidence in behalf of the plaintiff-, and conclusive, unless the defendants prove that there was a material change in the manner of conducting the business, intermediate the commencement of the suit and the finding of the indictment.
    The conviction is admissible, without any supplemental bill setting it forth.
    The erection of a building in a city, avowedly for the purpose of carrying on a trade which is a nuisance, may be restrained by injunction.
    A melting-house in a city, for the purpose of trying animal hit from the slaughterhouses, is presumptively a nuisance to the inhabitants in its vicinity ; and a general denial that it is a nuisance or offensive, will not suffice to justify the dissolution of a preliminary injunction. — Per Walworth, Chancellor, in the principal ease.
    To entitle parties to such an injunction, it is not necessary that they should reside on premises affected by the nuisance. It suffices that the nuisance is calculated to diminish the value of their property, by preventing good tenants from occupying it, or by destroying its value for building lots. — Per Chancellor Walworth, S. C.
    (Before Duer, Mason, and Campbell, J. J.)
    June 19, 20, 22;
    Sept. 22, 1849.
    The bill in this cause was filed in the late court of chancery, before the vice-chancellor of the first circuit, in November, 1844, by Elisha Peck, John C. Merritt, Anson G. Phelps, Runyon W. 
      Martin, and Richard A. Reading, against Robert Elder and four others, in order to restrain them from erecting and putting in operation a large fat-melting establishment at the corner of Fourth street and First Avenue, in the city of New York. The complainants were severally the owners of tenements, which they alleged would be injuriously affected by the proposed erection, as follows: J. C. Merritt owned three houses and lots in Fourth street, adjoining the site of the melting-house; R. W. Martin owned a valuable three-story dwelling-house, opposite Merritt’s; E. Peck owned five similar dwelling-houses on Second Avenue, within six hundred feet of the site ; A. G. Phelps owned twelve similar houses on Second Avenue, six on Fourth street, and eight on Fifth street, besides several vacant lots, all within six or eight hundred feet of the same site, (though he resided in a distant part of the city;) and R. A. Reading owned and occupied a like house, on First Avenue, within six hundred feet.
    The bill stated that Elder was the president, and the other defendants were, with him, the trustees of the Butchers’ Melting Association, a voluntary association of butchers in the city of New York, organized for the purpose of conducting, on a large scale, the melting of the fat and tallow from animals slaughtered by the butchers of the city generally. That for this purpose the association had bought a plat of ground at the north-west corner of Fourth street and First avenue, being seventy-three feet one and a half inches in front, on the avenue, and one hundred feet deep, the title of 'which was conveyed to three of the defendants; that the association were about to erect thereon a very large and extensive melting-house, and liad commenced excavating the cellar therefor, and building the cellar walls. That the complainants and others similarly affected, in number two hundred and sixty persons, presented a written remonstrance to the defendants, against the proposed establishment, which the defendants entirely disregarded, and the association, with full knowledge thereof, djpeted them to go on and erect the building, and use it for a melting-house. The bill then alleged that a melting-house in a city is an intolerable nuisance, eminently offensive to the neighboring population. It is accompanied by noisome, noxious, and offensive stenches and smells; the stench of the vapor and smoke being a source of serious offence, discomfort, and annoyance, for more than half a mile from the trying vats or kettles, especially in a dense atmosphere, when the vapor descends and alights on houses, clothing, and furniture, in light greasy particles, making an oily stain like that of lamp-black wiped off with ac-ffth; and that the stench makes many persons sick, and occasions them to vomit. The bill charged that the proposed melting establishment, if erected and put in operation, would be a grievous and unwholesome nuisance to the whole neighborhood, and would materially injure and impair the value of the complainants’ property before mentioned. That the stockholders in the association were so numerous, that it was impracticable to ascertain all their names, or make them all defendants. The bill prayed for a perpetual injunction against constructing the melting-house, and from using it for the purpose of melting and trying the fat and tallow of animals, and for abating the nuisance, if established, and for general relief. It also prayed a preliminary injunction to the same effect.
    The vice chancellor, (McCoun, Y. C.) granted a preliminary injunction ex parte, on filing the bill; but soon after modified it on the application of the defendants, so as to permit them to erect their intended building. The defendants then put in an answer on oath, denying among other things, that a melting-house, or establishment for the trying and melting of tallow, and the fat. of animals, in a city, is an intolerable nuisance ; or that it is of necessity a nuisance; or that the business is of necessity in any manner an offensive trade or business ; or that when conducted in a proper manner, the same may or ought to be interdicted by law. They alleged that the business can be so conducted as not to be a nuisance or offensive; that the location was a suitable and proper one, the neighborhood being in a great degree unimproved. That a large number <>f slaughter-houses are, and long have been, in full operation & that neighborhood, and various other establishments sometimes claimed to be offensive. They insisted that they have a perfect right to erect their proposed building and maintain it as a melting-house.
    
      A replication was filed to the answer. The defendants moved on their answer to dissolve the injunction, and the motion was granted by Yice Chancellor McCoun in June, 1845. The complainants appealed to the chancellor. While this appeal was pending, the defendants completed their melting-house and put it into operation on the very extensive scale originally contemplated. The following proceedings thereupon ensued; First. The grand jury indicted the defendants for carrying on the establishment, on the ground that it was a public nuisance. The indictment was removed from the general sessions to the oyer and terminer, and was tried in the latter court in April, 1846, when the defendants were found guilty, and a very small fine was imposed upon them by the court. Second. A resident of the neighborhood then filed a bill before the chancellor, and obtained an injunction against the same defendants, against their further conducting the business. They disregarded this injunction ; but after being heavily fined for their contempt of court by the chancellor, on the 24th of August, 1846, they discontinued the business, and removed their fixtures from the building in question.
    In August, 1846, the chancellor decided the appeal from the order dissolving the injunction in this cause, reversed the order, and restored the injunction .
    
    In May, 1849, the cause was transferred into this court from the supreme court, and it was brought to a hearing in June. The complainants introduced and proposed to read in evidence the record of the conviction of the defendants for the nuisance, in the oyer and terminer, before mentioned. The defendants’ counsel objected to the evidence, on the ground that it did not bear upon the issue, because it was found and tried long after the issue in this suit was joined, and ought to have been brought forward by a supplemental bill; also that it was not conclusive •upon the fact of nuisance.
    The Court held the evidence to be admissible, and sufficient to show that at the time of the indictment, the defendants’ establishment was a nuisance. But that the defendants might prove, if they could, that there was a material alteration in the manner of conducting the melting business, between the time of filing the bill «and that of the finding of the indictment.
    The complainants then read the record of the indictment in evidence, and proved their several ownership of the property mentioned in the bill, «and other facts which had been put in issue.
    The defendants’ counsel also raised the objection, that the complainants were improperly joined as parties, being owners in severalty of distinct parcels of land, and having no joint or common interest in any one parcel within the range of the alleged nuisance.
    The Court overruled this objection, and held that the complainants might join in the suit to obtain a perpetual injunction, though not to recover damages.
    The cause was then submitted to the court on the arguments of the counsel.
    
      D. / Hall and D. J). Field, for the complainants,
    referred on the hearing, to Reid v. Gifford, Hopk, R. 416; Murray ¶. Hay, 1 Barb. Ch. R. 59; Gatlin v. Valentine, 9 Paige 575 ; 1 Denio 52S; 4 Ibid. 311; 2 J. C. R. 162, 272; 6 Ibid. 439; 2 Story’s Erp Jur. § *920 to 928 ; 4 Hawk’s Rep. (N. C.) 382; 4 Leigh’s R, 569 ; 6 Paige 536'; 16 Yes. 342; 2 Wils.' Ch. R. 101 ; 2 Russ. 121; 3 Mylne & Keen 169 ; 8 Simons 193, 272 ; 2 Phill. Ch. R. 209 ; 15 Shaw & Dunlop’s Session Cases 775. 
    
    
      II. F. Ciarle, for the defendants,
    cited Earl of Ripon v. Hobart, Cooper’s Sel. Cas. 343; 6 Paige 554; 1 Clarke’s Ch. R. 336 ; 18 Yes. 211; 19 Ibid. 616 ; Ambler 158; 5 Mete. 125; Jeremy’s Ecp Jur. 310.
    
      
      
         On this occasion the following opinion was delivered:—
      The Chancellor. — This is an appeal from an order of the vice chancellor of the first circuit dissolving an injunction. The objection that different persons owning separate tenements, which are injuriously affected by a nuisance, cannot join in a suit to restrain such nuisance, is untenable. The case of Reid and others v. Gifford, Hopk. Rep. 416, decided by Chancellor Sandford in 1825, is the other way. So far as the bill seeks merely to restrain by injunction, a nuisance which is a common injury to each and every of the complainants, there is no good reason why they should not all be permitted to join in one suit, instead of multiplying cases by bringing several distinct suits.
      That the court of chancery has jurisdiction to restrain nuisances which are injurious to the property of individuals, is now too well settled to admit of discussion. And the facts stated in the bill in this case, show that the carrying on such an offensive business in the neighborhood of the residence of individuals, must necessarily be injurious to their property, and render the enjoyment thereof unsafe to health. And it is of no consequence whether the complainants reside on their property or not. It is sufficient that the nuisance is calculated directly to diminish its value, by preventing its being occupied by the complainants or by good tenants who are able and willing to pay the rent, or to destroy the value of the property as building lots.
      The answer denies that the melting-house is a nuisance, but it does not, as it could not, deny the fact that the melting of animal fat in such quantities, in such a place, must be offensive to the senses of the masses of the community, though persons by long use may become so accustomed to an unwholesome smell as to prevent its making them actually sick.
      The general denial, under the circumstances of this case, was not therefore sufficient to justify the dissolution of this injunction ; but it should have been retained to the hearing, except so far as it had been modified by the previous order. The. order appealed from must therefore be reversed with costs; and the injunction must be retained until the hearing. The proceedings are remitted to the vice chancellor of the first circuit.
      
        D. P. Hall, for the complainants.
      
        H. F, Clark, for the defendants.
    
    
      
      
         Bee Brady v. Weeks, 3 Barb. Supreme Court R. 157, that a slaughter-house in a city is prima facie a nuisance, and an injunction will be retained, though the defendant deny on oath that it is a nuisance. Per Paige, J., at the New York special term, May, 1848, Also see Howard v. Lee, post.
    
   By the Court.

Campbell, J.

This bill was filed to prevent the erection of a melting-house on the 1st Avenue, in the city of New York. The injunction granted at the time the bill was filed, was afterwards modified so far as to allow the erection of the building, and also the commencement of the melting business. Afterwards, the defendants were indicted, convicted, and fined for maintaining and carrying on this business, which was thus adjudged a serious nuisance. After the conviction, the defendants discontinued the melting business at this place. We are now asked to decree a perpetual injunction. On the part of the defendants, it is among other things alleged, that the bill was prematurely filed. We think not. The erection of a building for the purpose of carrying on an offensive business, and which has been adjudged a nuisance, was threatened. In the case of Catlin v. Valentine, 9 Paige 375, the facts were almost precisely the same as in this. The injunction was sustained by the chancellor, and we entirely concur in the opinion delivered by him. Using the word melting-house for slaughter-house, we might adopt his opinion as our opinion in this case.

The defendants have discontinued the melting business at this place, and if they do not wish to restore the nuisance, a perpetual injunction can do them no harm. The verdict of,the jury, and the conviction of the defendants, show that the complainants were right in their apprehensions, and were justified in filing their bill. We entertain no doubt as to the power of the court to interfere by injunction, and prevent the establishment of nuisances of this character. We have the power to prevent, as well as to remedy evils. At the same time, we are free to admit, that the power should be exercised with great caution. We have looked into the cases cited by the defendants, and especially the case of the Earl of Ripon v. Hobart, reported in 3d Mylne & Keen 169, and which was so strongly relied upon on the argument; and we think it supports the views taken by us as to the power of the court, and which indeed, may be considered as settled in our own and the English courts.

It is not necessary nowr to discuss again the questions relative to the admission of the record of conviction, and of the capacity of the complainants to file this bill. These questions were decided at the hearing.

A perpetual injunction must issue, with costs to the complainants.  