Opinion
May 27, 1938.
Action for a permanent injunction restraining the defendant from operating its factory under conditions alleged to constitute a nuisance, and for damages. Judgment granting permanent injunction and denying damages reversed on the law, with costs, and the complaint dismissed, with costs, without prejudice to an action at law to recover damages, if any, suffered by the plaintiff. The evidence does not disclose a condition that justified a court of equity in granting a permanent injunction. There is a doubt whether the condition of which plaintiff complains constitutes a substantial annoyance and whether or not he has sustained substantial damages. In any event, under the circumstances disclosed in the proof, he should be relegated to an action at law to recover such damages, if any, as he has suffered. ( Riedeman v. Mt. Morris Electric Light Co., 56 App. Div. 23, 27; Haber v. Paramount Ice Corporation, 239 id. 324; affd., 264 N.Y. 98; McCarty v. Natural Carbonic Gas Co., 189 id. 40, 46.) Findings of fact and the conclusion of law are reversed. Lazansky, P.J., Carswell, Davis, Johnston and Taylor, JJ., concur.