
    Thomas B. Gifford, Pl’ff, v. The Babies’ Hospital of the City of New York, Def’t.
    
      (Supreme Court, Special Term, New York, County,
    
    
      Filed June 21, 1888.)
    
    1. Nuisance—What business a nuisance per se—What not—When an INJUNCTION WILL BE GRANTED.
    A business certain to bring material injury to others is a nuisance per se. One where material injury may be inflicted on others, dependent upon the manner of prosecution, is not a nuisance per se, but requires clear proof showing the mode of conduct will, in reasonable judgment, bring material harm to others. If a case is thus made out, the court will grant relief by injunction.
    2. Same—Babies’ hospital in locality devoted entirely to private RESIDENCES A NUISANCE.
    The defendant had purchased a house, originally a dwelling, under a restrictive covenant, in a locality wholly devoted to private residences, and proposed to there conduct a hospital for the care of sick infants, including any who may develop, after admission, contagious disease. Held, that the hospital is not a nuisance prima facie. That the hospital was not a reasonable use of property, considering the locality and surroundings. That the plaintiff:, the owner of a contiguous dwelling, was entitled to an injunction restraining the business because it was a nuisance.
    3. Same—Clause in deed restricting use of property—When court WILL ENFORCE—CONSTRUCTION OF.
    The restrictive covenant in the deed was that "no tenement house, livery or other stable, slaughter house, butcher or smith shop * * * or any other building, trade or business which may be dangerous, injurious or offensive to the neighboring inhabitants, shall be built, allowed or carr.ed on on the above granted premises.” Reid, that this covenant was broad enough to protect adjacent owners, and would not allow defendant to use said premises for a babies’ hospital. That the court would enforce such a covenant save when the character of the contiguous property has wholly changed in use from the original design.
    -4. Same—Evidence—Admissibility.
    It was error to exclude proof claimed to show a depreciating effect upon surrounding property.
    
      Hays & Greenbaum, for pl’ff; Carter, Hollins & Led-yard, for def’t.
   Beach, J.

In Lexington avenue, at Forty-fifth street, the defendant has purchased a house, originally a dwelling, under a restrictive covenant, and proposes to there conduct a hospital for the care of sick infants, including any who may develop, after admission, contagious disease.

The plaintiff, owner of a contiguous dwelling, brings suit for a decree enjoining the business, because a nuisance and a breach of the restrictive clause. The locality is residential.

I think the plaintiff has undoubted right to file the bill upon the firstground; there cannot be doubt that the second presents a serious legal question. Atlantic Hock Co., v. Leavitt, 50 Barb., 135; Wood on Nuisances, sec. 1.

A business certain to bring material injury to others is, I apprehend, a nuisance per se. One where material injury may be inflicted on others, dependent upon the manner of prosecution, is not a nuisance per se, but requires clear proof showing the mode of conduct will, in reasonable judgment, bring material harm to others. If a case is thus "made out, the court will grant relief by injunction.

There are cases in the books where the proofs or the affidavits upon motion have fallen short of this standard, and the writ pendente lite and by decree has been refused, until after successful suit at law. The adjudications upon motions are to a certain extent inapplicable here, the evidence being before the court.

In my opinion the hospital is not a nuisance prima facie. While not within that class, there are general features inseparable from its maintenance proper for consideration upon the contention of its being shown a nuisance from the way of management. In these are inclnded the noise of patients, their advent, removal and death, with its consequences. From the evidence appears the reasonable probability of contagious disease, provided for by a wise provision, although limited to cases to develop after reception. While this may diminish the number, it does not remove the important factor. The locality is shown wholly devoted to private residences, until this most laudable undertaking: selected the house for its accomplishment.

The learned- counsel have cited many adjudications, and the subject is thoroughly treated in Wood’s Law of Nuisances. It seems unnecessary to specify cases, because each one differs from most others in facts. In Ross v. Butler (19 N. J. Eq., 294), the court states a correct conclusion “ In fact no precise definition can be given; each case must be judged of by itself. ” In Wood’s text book, it is well said, at section 9: “ The locality, the condition of property, and. the habits and' tastes of those residing there, divested of any fanciful notions, or such asare dictated by ‘dainty modes and habits of living,’ is the test to apply in a given case.

In the very nature of things there can be no definite or fixed standard to control every case in any locality. The-question is one of reasonableness or unreasonableness in the use of property, and this is largely dependent upon the locality and its surroundings.”

To my mmd the hospital is not a reasonable use of property, considering the locality and surroundings. The care of sick infants, so to speak, in gross, brings danger to the youthful members of families living near. The aggregation multiplies the risk of ordinary existence, whatever may be the degree of care taken1 Who would willingly submit his. child to such chance? And, not being called upon to do so by the necessities of ordinary life, the imposition becomes an invasion of right. This is not a harsh application of the-rule, because numberless locations are easily attainable-where the beneficent charity could do its work with iniury to none.

Then, too, this site was selected with full notice from a. restrictive covenant in the deed. That, too, I think fatal to defendant. “No tenement house, livery or other stable,, slaughter house, butcher or smith shop, forge, steam engine, foundry, manufactory of metals, glue, varnish,, ■vitrol, turpentine or ink, or any brewery or distillery, or any other building, trade or business which may be dangerous, injurious or offensive to the neighboring inhabitants, shall be built, allowed or carried on on the above granted-premises.” This is an express agreement the defendant must, perform. If it is not sufficiently broad in its terms to protect-adjacent owners, then nothing short of omniscient designation will do so. The effect should not be diminished by legal refinement or argumentative clipping, but its terms should meet with a just yet not a broadening interpretation. I am inclined to think there was error on the trial in excluding proof claimed to show a. depreciating effect upon surrounding property. It may well have been competent. under the head of “injury to neighboring inhabitants.”' The court has invariably enforced such covenants, save-when the character of the contiguous property has wholly changed in use from the original design. I am unable to-read this one without a first thought of its preventive application. Neither does the rule of Noscitur a sociis lessen its legal force. The hospital, even if not dangerous, is injurious and offensive, in the same way as a tenement-house, livery or other stable, butcher shop or brewery. The rule calls only for similitude in the nature of the injury or offense, not the particular manner or means of its conveyance. The tenement may bring crowd, turbulence and contagion; so may the hospital; the others may give-offense to the senses; so may this business as well.

Decree for plaintiff, with costs.  