Friedman v. Keil, 1.

• Decision Date: 27 April 1933
• Docket Number: No. 1.,1.
• Citation: 166 A. 194
• Parties: FRIEDMAN v. KEIL.
• Court: New Jersey Supreme Court

166 A. 194

FRIEDMAN

v. KEIL.

No. 1.

Court of Errors and Appeals of New Jersey.

April 27, 1933.

Appeal from Court of Chancery.

Suit by Rose Friedman against Isidore Keil. From decree for complainant, defendant appeals.

Affirmed.

The defendant appeals from a final decree enjoining a nuisance in the operation of his bake shop because of smoke, excessive noise, and the maintenance of ash cans in the alleyway between his premises and that of the complainant. Said decree was advised by Vice Chancellor Berry, who filed the following conclusions:

"The complainant purchased the premises occupied by her from her father within a year or so prior to the institution of this suit, and he had purchased it a comparatively short time previous thereto. Long prior to the acquisition of title by the complainant's predecessor in title a bakery was operated in the defendant's property. This bakery was considerably enlarged in 1930 by the building of an addition at an expense of some §50,000. There was apparently no complaint by the complainant or any one else respecting the operation of this plant prior to its enlargement. The complaints now are threefold; that a nuisance exists, first, because of smoke emanating from the smoke stacks on the bakery and which smoke, it is alleged, permeates the rooms of the complainant's property; second, excessive noise in the operation of the machinery and equipment of the bakery and loud and boisterous talking; third, the maintenance of a large number of ash cans in the alleyway in which is deposited refuse of all kinds and from which emanate nauseous odors.

"Many witnesses were examined on both sides of this controversy and, as usual in such cases, the testimony is very contradictory. The matter was finally referred to a special master who was directed to make an inspection of the premises and report to the court as to the conditions which he found. This inspection has been made and the master's report filed. He reports that at no time on the four occasions when he inspected, the premises did he observe any great volume of smoke from the smoke stacks on the bakery, but that in the event of a west or northwest wind smoke might find its way into the top windows of the third story of complainant's premises; but that this difficulty could be easily eliminated by raising the height of the stacks. As to the noise in the bakery he reported that when the dough mixers are running there is produced an intense grinding sound comparable to that made by an automobile truck in low gear and that he heard these mixers in operation as late as 3 o'clock in the morning, and that the sound of the dough mixers could still be heard when a trolley car was passing the premises; that noise also emanated from the operation of a cake mixer but that this was of a much lighter tone and comparable to the noise of a large dynamo; that there were also 'sounds of the banging of wooden trays and a general class of noises which might be described as clatter persisted through the night, sometimes in greater volume than at others and occasionally ceasing altogether. In addition, the voices of the employees could be heard raised apparently because of the noise in the bakery and because they were speaking to each other while at some distance apart. Occasionally during the night these voices became quite loud, sometimes with laughter, and sometimes in tones of complaint or anger. In summer months when the windows of the bakery adjoining the alley were all open all of these noises were accentuated; in October, when the windows were only partly open and some entirely closed the situation was better.' The master also reported that the only noise in the neighborhood during the middle of the night was that coming from this bakery and that these noises disturbed the quiet of the neighborhood; also that after 4 o'clock in the morning a considerable noise was made by the defendant's distributing wagons and by the delivery of milk cans by the milkman at about the same time.

"As to the nauseous odors from the garbage cans, the master reported that he found from twelve to fourteen metal garbage cans on the west side of the alley and on the easterly edge of the defendant's property; that some were covered and some were not; that the odor emanating from these cans...