#### George F. Barnard, Appellant, *v.*Philip Finkbeiner and Lewis Finkbeiner, Respondents.

Second Department,

May 8, 1914.

Pleading — suit for injunction to restrain use of profane and obscene language—nuisance — complaint stating cause of action.

A complaint by the lessee of a theatre building which alleges that the defendants, tenants of an adjoining building, frequently and almost daily while in their apartments and on the street in front of the same indulge in loud and profane swearing and vile and obscene talk, which can be clearly heard in the plaintiff’s theatre by his family, employees and patrons, and that such conduct on the part of the defendants causes injury to his business, etc., and impairs his enjoyment of the premises, states a cause of action for a permanent injunction.

The complaint need not allege that the injury is of a continuous character, or threatens to continue, for equity may issue an injunction if satisfied by the evidence that there is reasonable probability that a nuisance will continue.

Appeal by the plaintiff, George F. Barnard, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Dutchess on the 16th day of February, 1914, sustaining a demurrer to the complaint.

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      *Elijah T. Russell,*for the appellant.

*James E. Carroll,*for the respondents.

Jenks, P. J.:

The defendants demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action, and gained the interlocutory judgment from which the plaintiff appeals. The plaintiff complains that he is lessee of a theatre building in a village; that the defendants are tenants of an adjoining building; that for the past several months the defendants frequently and almost daily, while in their apartments, or on the street in front of the same, and during the evening and afternoon performances at plaintiff’s theatre, have indulged in loud and profane swearing and vile and obscene talk; that such profane swearing and obscene language could at times be clearly heard in plaintiff’s theatre by plaintiff, his family, employees and patrons of his theatre; that such conduct on the part of said defendants causes an injury to plaintiff’s business in the conduct of his said theatre, and that it materially impairs plaintiff’s enjoyment of his premises as aforesaid; wherefore he asks a perpetual injunction against the defendants from using any profane or obscene language or profane swearing while in or about their premises aforesaid, loud enough for plaintiff or any member of his family or employee or patron of his theatre to hear.

I think that the complaint is good within the general rule stated in *Cranford*v. *Tyrrell*(128 N. Y. 341), cited and approved in *Matter of Debs*(158 U. S. 593). The frequent use of loud, profane, vile and obscene language that can be heard in plaintiff’s building may be said to render it “ unfit for comfortable or respectable occupation, and unfit for the purposes it was intended for. ” The learned counsel for the respondents points out that the complaint fails to allege either injury of a continuous character or threats to continue. But the fact that the offending is not perpetual cannot avail the defendants if that offending be an unmistakable nuisance. (High Inj. [4th ed.] § 772, citing *Ross*v. *Butler,*4 C. E. Green, 294, 302; Wood Nuis. [3d ed.] § 780; Pom. Eq. Rem. § 501.) *321As to the threats to continue, the appellant loses sight of the distinction between future acts which may or may not be a nuisance, according to the fashion of the doing thereof, and of future acts of which the very doing constitutes nuisance. As to the latter, an equity court may decree its injunction, if it is satisfied by the evidence that there is a reasonable probability of their doing. (See *Miley*v. *A’Hearn,*18 S. W. Rep. 529.)

The interlocutory judgment is reversed, with costs, and the demurrer overruled, with leave to the defendants to plead over on payment of costs.

Burr, Thomas, Carr and Rich, JJ., concurred.

Interlocutory judgment reversed, with costs, and demurrer overruled, with leave to defendants to plead over on payment of costs.