Opinion
July, 1910.
Judgment affirmed, with costs. McLennan, P.J., voted for affirmance upon the opinion of Andrews, J., delivered at Special Term (reported in 64 Misc. Rep. 205); Spring and Kruse, JJ., voted for affirmance; Williams and Robson, JJ., dissented in a memorandum by Robson, J.
I dissent and vote for reversal of the judgment. Plaintiff's cause of action is based upon a charge that defendant is polluting the waters of Skaneateles creek by discharging therein waste matter from its mill and is thereby maintaining a public nuisance, which causes special injury to plaintiff. The court has found these facts and also specifically finds that plaintiff, since it has owned and operated its own mill, has discharged into the same stream paper waste and waste matter from its mill substantially the same as other paper mills located on the stream above its plant "and has thus itself continued to cause during said period pollution of the water." In other words, it is itself committing the same wrong against the public which it claims defendant is perpetrating. The basis of plaintiff's action is necessarily the public nuisance created by defendant; otherwise, it would appear that defendant might be allowed a prescriptive right to use the stream in the manner complained of. But plaintiff equally offends against the public right. In trade-mark cases the fact that plaintiff is himself in any way deceiving the public is a sufficient ground for denying injunctive relief. ( Manhattan Medicine Co. v. Wood, 108 U.S. 218, 227.) It seems also to have been held that an erection extending into a public street no farther than a stoop upon plaintiff's adjoining property was no practical interference with the street of which plaintiff could complain. ( Wormser v. Brown, 149 N.Y. 163, 172.) Plaintiff contributes to the maintenance of a public nuisance just as defendant does. It equally offends and ought either to correct its own fault or bear its share of the burden of the public nuisance which it helps to maintain. A court of equity should not aid a wrongdoer to more profitably continue his wrongdoing by restraining at his instance and for his special benefit a brother offender from engaging in a like practice. It is unnecessary to consider other grounds upon which a reversal of the judgment might well be predicated. Williams, J., concurred.