#### Peter Politis and Louis Laphys, Respondents, *v.*Times Square Improvement Company, Appellant.

First Department,

July 9, 1915.

Nuisance — landlord and tenant — injunction—obstruction of street by tenants.

Where a landowner erects a loft building in such a manner that the only entrance for freight is through a smaller adjoining building owned by him, a suit against him for an injunction does not lie upon the theory that the building is a nuisance in that the tenants of the owner obstruct the sidewalk with the freight which they bring into the building, thereby interfering with the plaintiff’s access to an adjoining building in which he carries on business.

While One may obtain relief in equity from an unreasonable obstruction of the public street, such suit must be brought against the person who creates the obstruction or exercises control over the persons who create it, and a landlord is not liable for obstructions created by his tenants where the use for which he lets the building will not necessarily result in a nuisance.

Hotchkiss, J., dissented.

Appeal by the defendant, Times Square Improvement Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of May, 1915. denying defendant’s motion for judgment on the pleadings.

*J. A. Seidman,*for the appellant.

*Francis M. Applegate,*for the respondents.

Scott, J.:

The action is to restrain the maintenance of a nuisance and for damages. The nuisance complained of is that defendant *815has erected a large loft building on the northeast corner of Thirty-seventh street and Broadway, and in connection therewith and to be used as an adjunct thereto has erected a smaller building upon a plot of land twenty feet wide on Thirty-eighth street adjoining the premises used by plaintiffs in their restaurant business; that the buildings have been so constructed that the only freight entrance provided for the tenants of the large building is through the narrow building, with the result that goods are constantly being received and delivered through said entrance, the sidewalks in front of said entrance and in front of other property including that occupied by plaintiffs is constantly incumbered by goods in course of receipt and delivery, and vehicles constantly stand in the street, whereby, as it is said, access to plaintiffs’ premises is impeded and their business interfered with and injured. In short, the plaintiffs’ grievance is that defendant has so constructed and arranged its building or buildings as to cast upon Thirty-eighth street an undue burden of inconveniences resulting from the uses to which defendant’s building is devoted. It is not alleged that defendant itself ships or receives any goods or has any control over its tenants respecting the manner in which they ship and receive goods, except that by the arrangement of the buildings it has compelled all goods to be received and delivered through the Thirty-eighth street entrance. The defendant’s motion for judgment is equivalent to a demurrer to the complaint. We are unable to find in the complaint any allegation of injury, in a legal sense, committed by defendant. The sidewalk and the street in front of it are no part of the demised premises, and no duty rests upon defendant to keep them clear from encroachments by others. The complaint, so far as we can see, charges defendant with no violation of any duty imposed upon it by law, nor is there any privity of contract between plaintiffs and defendant which would justify a complaint by plaintiffs that defendant had failed to furnish its tenants with adequate facilities for delivering and receiving goods. Of course it is unlawful to unreasonably obstruct the highway *(Cattanan*v. *Gilman,*107 N. Y. 360), and an adjoining owner or lessee who suffers injury from an unreasonable obstruction may obtain relief in *816equity, but such relief must be sought against the obstructor, not against one who neither obstructs nor exercises any control over those who do obstruct. Doubtless a landlord who rents his ■ premises for a use which will necessarily result in a nuisance, as in the case of the boiler makers, will be held equally liable with his tenants for the resulting nuisance. *(Fish*v. Dodge, 4 Den. 311.) But in the present case no fault is found with the use to which defendant has devoted its building, nor is it claimed that any nuisance results from any use of the building itself. Indeed there is no reason to suppose that defendant knew or had reason to anticipate that the arrangement it adopted for its buildings would necessarily result in loss to any one.

We are of the opinion that the complaint states no cause of action against this defendant. The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. J., Clarke and Dowling, JJ., concurred; Hotchkiss, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.