Opinion
Argued June 8, 1925
Decided June 12, 1925
Appeal from the Supreme Court, Appellate Division, Second Department.
John J. Fitzgerald and Abraham Lehman for appellant.
George W. Tucker and Orville C. Sanborn for respondents.
There is evidence to sustain the new findings made by the Appellate Division that the boxing matches conducted by the defendant at night constituted a nuisance in this residential section of the city, where the homes had been built and occupied long before the arena was constructed. With the weight of the evidence, we have nothing to do. The judgment, however, is too broad. The only complaint is against the boxing matches, which attract the noisy boisterous crowd; the evidence only relates to these. The judgment, however, restrains the defendant from holding "any gymnastic or athletic entertainment or exhibition or public exhibition or show or any other similar activity in the nighttime." This would prevent any theatrical performance or any other exhibition, no matter how quiet and peaceful the performance and the spectators might be.
The judgment must be modified so as to restrain any prize fight, boxing exhibition, boxing contest, wrestling contest or any other similar activity in the nighttime, plaintiffs to have the right to apply at the foot of this judgment for further relief as to any exhibition claimed to be an activity similar to those specifically restrained. As thus modified, the judgment should be affirmed, without costs.
HISCOCK, Ch. J., CARDOZO, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur; POUND, J., absent.
Judgment accordingly.