
    John P. Cranford et al., Resp'ts, v. Martin B. Tyrrell, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 6,1891.)
    
    Nuisance—House oe prostitution—Special damages.
    Where the indecent conduct of the occupants of a neighboring house of prostitution and the noise therefrom are such as to render plaintiff’s house unfit for comfortable or respectable occupation and unfit for the purposes it was intended for, this will constitute such special damage as to entitle him to maintain an action to abate the nuisance.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.
    
      Jas. & Thos. H. Troy, for app’lt; Alfred E. Mudge, for resp’ts.
    
      
       Affirming 37 N. Y. State Rep., 967.
    
   Gray, J.

In this action, which was brought to restrain the defendant from keeping a house of ill-fame and from using his premises as an assignation house, and to recover damages for injuries sustained, the trial court found as facts that the house, as maintained by defendant, was a resort for prostitutes and licentious men and that the persons occupying rooms acted in a boisterous and noisy manner and indecently exposed their persons at the windows, “ whereby the use and occupation of the plaintiff’s premises have been interfered with and rendered uncomfortable and whereby the occupants of the plaintiff’s premises have been annoyed and seriously disturbed.”

Such a finding was amply justified by the evidence, and indeed it is not discussed by the appellant; but he argues that the plaintiffs could not maintain a civil action of this nature inasmuch as the damage they suffered was a damage common to the whole community, and not special to them. If that position had been sustained by the facts, I do not doubt but that it would have been* the duty of the trial judge to have denied the relief prayed for. The rule of law requires of him who complains of his neighbor’s use of his property, and seeks for redress and to restrain him from such use, that he should show that a substantive injury to property is committed. The mere fact of a business being carried on, which may be shown to be immoral, and, therefore, prejudicial to the character of the neighborhood, furnishes of itself no ground for equitable interference at the suit of a private person. And though the use of property may be unlawful, or unreasonable, unless special damage can be shown, a neighboring property owner cannot base thereupon any private right of action. It is for the public authorities, acting in the common interest, to interfere for the suppression of the common nuisance. See Francis v. Schoellkopf 53 N. Y., 152.

If the business complained of is a lawful one, the legal question presented in a civil action for private damage is whether the business is reasonably conducted and whether, as conducted, it is one which is obnoxious and hurtful to adjoining property. If the business is unlawful the complainant in a private action must show special damage, by which the legitimate use of his adjoining property has been interfered with, or its occupation rendered unfit or uncomfortable. That the perpetrator of the nuisance is amenable to the provisions and penalties of the criminal law is not an answer to an action against him by a private person to recover for injury sustained and for an injunction against the continued use of his premises in a similar manner. The principle has been long settled that the objection that the nuisance was a common one is not available if it be shown that special damage was suffered. Rose v. Miles, 4 M. & S., 101; Rose v. Groves, 5 Man. & Gr., 613; Francis v. Schoelllcopf, supra; Lansing v. Smith, 4 Wend., 9. One who uses his property lawfully and reasonably, in a general legal sense, can do injury to nobody. In the full enjoyment of his legal rights in and to his property the law will not suffer a man to be restrained; but his use of the property must be always such as in no manner to invade the legal rights of his neighbor. The rights of each, to the enjoyment and use of their several properties should, in legal contemplation, always be equal. If the balance is, destroyed by the act of one, the law gives a remedy in ■damages, or equity will restrain. If the use of a property is one which renders a neighbor’s occupation and enjoyment physically uncomfortable, or which may be hurtful to the health, as where trades are conducted which are offensive by reason of odors, noises or other injurious or annoying features, a private nuisance is deemed to be established, against which the protection of a ■court of equity power may be invoked.

In the present case the indecent conduct of the occupants of the defendant’s house and the noise therefrom, inasmuch as they rendered the plaintiff’s house unfit for comfortable or respectable ■occupation and unfit for the purposes it was intended for, were facts which constituted a nuisance and were sufficient grounds for the maintenance of the action. If it was a nuisance which affected ,the general neighborhood and was the subject of an indictment for its unlawful and immoral features, the plaintiffs were none the less entitled to their action for any injury sustained and to their ■equitable right to have its continuance restrained.

The judgment appealed from should be affirmed, with costs.

All concur, except Finch, J., absent.  