Opinion
October Term, 1896.
Henry A. Forster and Amasa A. Redfield, for the appellant.
Roger Foster, for the respondent.
The motion in this case does not appear to have been denied because of want of power, and, therefore, if there were facts enough shown upon the motion to justify the court in refusing the injunction, there is no necessity for the discussion upon this appeal of the interesting constitutional questions sought to be presented. The affidavits upon the part of the plaintiff are to the effect that no pestilence or contagious disease had ever occurred in the building; that all the sinks and drains are in perfect sanitary condition and have been continually kept in that condition; that the entire plumbing and drainage of the premises are in perfect condition, and that the height of the ceilings is seven feet seven inches.
Upon the part of the defendant affidavits were offered to the effect that the sink in the yard was filthy, emitting offensive odors, and sour smelling; that the cellar of the building was only five and one-half feet high, was not cemented, but damp through want of ventilation; that many of the rooms of the tenement in question are ventilated from a narrow space, at the bottom of which there are accumulations of dirt and filth, which render the air foul, impure and unhealthy, and that the whole building is in a very offensive condition from dirt and vermin, is unfit for human habitation, and endangers the health of the occupants of the other houses in the vicinity.
This state of the premises in question is sought to be established by the affidavits of several persons who had examined the premises. These particular allegations are in no way met by the plaintiff, who relies entirely upon the general allegations contained in her moving papers. If the premises in question were in the condition sworn to, they were a public nuisance, which the board of health was justified in summarily abating. Its continuance was a menace to the public health, and it is well settled that a public nuisance may be abated. ( United States Ill. Co. v. Grant, 55 Hun, 222.)
This being the condition of the proof before the court below, it was justified in refusing to interfere, as a court should not, even if it had the power, except upon good cause shown, interfere in the measures taken by public officials to protect the public health.
If the defendant has acted without justification the plaintiff has her remedy at law, which, in this case, would seem to be entirely ample.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
BARRETT, RUMSEY, WILLIAMS and PATTERSON, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.