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of the sale and was entitled to the commissions, whereupon Lowenthal paid him 1 per cent. of the purchase price.
It also appeared that Lowenthal had a conversation with Gregory immediately prior to the sale, and then said to him that he had given the preference of making the sale to Oppenheimer, and, if Oppenheimer was not able to make an offer at the price which Gregory made, he would accept Gregory's offer, and he would be entitled to the commissions. Lowenthal thereupon communicated with the plaintiff, and told him he had a better offer than $68,500, and plaintiff said he could not make any better offer than that, and, if Lowenthal could get any more, then sell; that the plaintiff never introduced him to the defendants Barnett or Blumenthal, never told him they wanted the property, and at the time the sale was made he did not know they were the parties with whom the plaintiff was negotiating. It further appeared that Gregory divided his commissions with the purchasers. Just how much he gave them does not clearly appear from the record; but it is fairly to be inferred that it was at least one-half, and that he had divided his commissions with them in previous transactions.
There is no doubt that, when the defendants purchased the property in question, they intended to dispense with Oppenheimer for the sole purpose of having Gregory get the commissions; but they had a legal right to do this. Oppenheimer did not represent them, and they were under no legal obligations to him. He was the broker who represented the owner, and if he made a sale the owner had agreed to pay him commissions. True, he had called their attention to the fact that the property was for sale, but that in no way obligated them to make the purchase through him. On the contrary, they could go directly to the seller and make the best trade they could with him, or they could purchase through some broker whom they selected themselves. In either case the broker whom the seller had originally employed would have no cause for complaint against them, or against the broker to whom the seller paid the commissions. If the plaintiff was entitled to commissions at all, it was from the seller; and if he was the procuring cause of the sale he must look to him, and not to the purchaser. It is, to say the least, a novel suggestion that the purchaser of real estate is obligated in some way to see that a broker employed by the seller gets the commissions to which he claims he is entitled.
The judgment is right, and should be affirmed, with costs. concur.
HEATON et al. v. PACKER et al.
(Supreme Court, Appellate Division, First Department. April 8, 1909.)
1. NUISANCE ($ 3*)—WHAT CONSTITUTES-HOSPITAL FOR INSANE.
Though hospitals for insane persons may be so conducted in certain localities as to become nuisances, they are not nuisances per se.
[Ed. Note. For other cases, see Nuisance, Dec. Dig. $ 3.*]
2. NUISANCE ($ 23*)—ABATEMENT BY INJUNCTION.
An injunction will not be granted to restrain an apprehended nuisance from certain use of property, unless it is inevitable or apparent that the proposed use will actually result in a nuisance.
[Ed. Note.-For other cases, see Nuisance, Cent. Dig. $ 55 ; Dec. Dig. 8 23.*] 3. PLEADING ($ 214*)-ADMISSIONS BY DEMURRER.
A demurrer to the complaint to restrain the use of a building as a hospital for insane persons does not admit that the things will actually occur as alleged which plaintiff apprehends in the operation of such hospital.
[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 52612 ; Dec. Dig. $ 214.*]
Appeal from Special Term, New York County.
Action by Mary A. W. Heaton and others against Flavius Packer and others. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal. Reversed.
Argued before PATTERSON, P. J., and LAUGHLIN, CLARKE, MCLAUGHLIN, and HOUGHTON, JJ.
George C. Austin, for appellants.
HOUGHTON, J. The complaint alleges that the plaintiffs own and occupy lands in the borough of the Bronx, in the city of New York, adjoining to and abutting upon property owned by the defendants; that the lands occupied by the plaintiffs are in a high-class residential portion of the city of New York, and are suitable and valuable for residence purposes only; that the defendants have purchased the lands described in the complaint for the purpose of establishing, and are now erecting and altering the buildings thereon for the purpose of using them for a hospital for the insane, and the housing, keeping, and caring for a large number of insane persons. The complaint further sets forth a large number of dangerous and disagreeable things which will occur from the establishing and maintaining of such a hospital for the insane, amongst others, that it will greatly depreciate the value of plaintiffs' property for residential purposes, and destroy the neighborhood as a residential section, and make it dangerous for women and children to go upon the streets adjacent to the hospital, and make the residents nervous and ill from seeing unseemly sights and hearing unseemly noises. The relief asked is, not that the defendants shall be restrained from the further erection and alteration of buildings, but that they shall be restrained from using them for the purposes of maintaining a hospital for the insane. The defendants demurred to the complaint on the ground that it failed to state a cause of action, and, on that demurrer being overruled, appealed to this court.
We are of the opinion that the demurrer should have been sustained. Hospitals and insane asylums are necessities, and, while they may be so conducted in certain localities as to become nuisances, they are 'For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
not nuisances per se. Gilford v. Babies' Hospital (Sup.) 1 N. Y. Supp. 448; 29 Cyc. 1175. The plaintiffs concede that the defendants have a right to erect their buildings on their own land as they may choose, and they do not ask that their erection be restrained. By their allegations, however, they do set forth a large number of things which they apprehend will happen when the asylum shall be established and persons of unsound mind received for treatment. If all should actually happen which the plaintiffs now imagine will happen, possibly they might have good cause for complaint. The defendants' institution, however, may be so constructed and so managed that none of the evils which the plaintiffs apprehend will ever occur. While the establishment of a lunatic asylum in the plaintiffs' neighborhood may not be a desirable thing, still the evils apprehended do not necessarily arise from its maintenance, and are not inherent to it,'like those coming from a slaughterhouse, for example. Following the English rule, the Chancellor, in Mohawk Bridge Co. v. Utica & S. R. Co., 6 Paige, 563, said:
"If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief, where the complainant's right is not doubtful, without waiting for the result of a trial. But where the thing sought to be restrained is not in itself noxious, but only something which may, according to circumstances, prove to be so, the court will refuse to interfere until the matter has been tried at law by an action."
The rule sanctioned by the authorities and the text-books with respect to the restraining of an apprehended nuisance by temporary or permanent injunction is that an injunction will not be granted unless it is apparent or inevitable that the proposed use of the property will actually result in a nuisance. People v. Canal Board, 55 N. Y. 390; Morgan v. City of Binghamton, 102 N. Y. 500, 7 N. E. 424; Stilwell v. Buffalo Riding Academy (Sup.) 4 N. Y. Supp. 414; High on Injunctions, § 742; Wood on Nuisances, $ 797.
The plaintiffs urge that the various things which they have alleged will happen stand admitted by the demurrer. The difficulty with applying this rule is that from the nature of the allegations they are not allegations of existing facts, but only allegations of what will transpire in the future. Where allegations of this character are made, it cannot be that the demurrer admits that the things will actually occur as alleged; but it is left open for the court to say whether or not, from the nature of things, they probably and necessarily will happen. In our view the demurrer does not admit that all the disagreeable and dangerous things set forth in plaintiffs' complaint will actually arise. Nor does it appear to us that they will necessarily arise from the use to which the defendants propose to put their property. It follows, therefore, that the plaintiffs have failed to state a cause of action entitling them to an injunction.
The defendants criticise the complaint, in that it does not allege how close to defendants' premises the plaintiffs' lands are situated, and intimate that the locality is unimproved, with plenty of room for any kind of structure or business. However that may be, in our view
The interlocutory judgment overruling the demurrer should be reversed, and the demurrer sustained, with leave to the plaintiffs to amend upon payment of costs. All concur.
(62 Misc. Rep. 134.)
CITY OF GLENS FALLS v. MCMULLEN. (Supreme Court, Trial Term, Warren County. January, 1909.) 1. MUNICIPAL CORPORATIONS (8 516*)-LOCAL IMPROVEMENTS–PAVING ASSESS
Trustees of a village proceeded regularly to levy an assessment for paving a city street, having jurisdiction of the subject-matter and the persons assessed. Held, that their action was not subject to collateral attack.
[Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. $
516.*] 2. MUNICIPAL CORPORATIONS (8 516*)-LOCAL IMPROVEMENTS–PAVING ASSESS
It is no defense to an action by a municipality to recover a paving assessment that the amount expended during the fiscal year for street pap. ing was more than one-half the amount raised for street purposes, nor that the landowner was compelled to pay for paving a portion of the street not abutting on his land, or beyond the center of the street.
(Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. $ 516.*] Action by the City of Glens Falls against Arthur L. McMullen. Judgment for plaintiff.
Lyman Jenkins, for plaintiff.
VAN KIRK, J. This action is brought to recover $215.49, which is the amount assessed against the property of the defendant for paving upon South street, in the city of Glens Falls, between School and Third streets. On May 3, 1907, the board of trustees of the village of Glens Falls determined in regular form to pave South street, from School street to Third street, with sheet asphalt, at the joint expense of the village and the owners of the adjoining property; one half thereof to be paid by the owners of the adjoining land, and the other half by the village. This pavement was completed on November 18, 1907, at a total expense of $23,340.46.
Immediately after the completion of the paving, the board of trustees (the taxing body) served a notice of at least 10 days upon the defendant and other owners of property adjoining the street to be paved, stating the expenditure which had been made for the paving and the amount, and also stating that at a specified time and place the board of trustees would meet and make an assessment upon the adjoining land. The board of trustees met at the time and place specified, and the defendant appeared. The board heard and determined all objections made to the assessment, including the amount thereof; and, if this defendant made any objections, they do not appear in the record in this case. The amount so assessed was fixed by the board of trus•For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
tees, and did not exceed the amount stated in the notice served upon the defendant. Defendant has never paid this tax. The village of Glens Falls was created the city of Glens Falls March 13, 1908; and such right of action as exists against the defendant upon the foregoing facts exists in favor of this plaintiff.
The defendant presents to the court two objections, on account of which he claims that the plaintiff cannot recover. The first objection is under section 166 of the village law, providing that the total amount expended for street paving in any fiscal year, from the moneys raised during such year for street purposes, otherwise than in pursuance of a village election, shall not be more than one-half thereof; and the second objection is under the same section, providing that no landowner shall be required to pay or bear the expense of paving any portion of the street not in front of such land nor beyond the center of the street. The defendant claims that the amount used for paving purposes in the fiscal year of 1907 was in excess of the amount allowed by law, and that the defendant was assessed for paving in front of his premises beyond the center of the street.
In this case it is to be assumed, inasmuch as the defendant does not challenge the facts, that the board of trustees of the village of Glens Falls were duly elected, that they duly qualified, and that they were the body to make legally the assessment in question. They had jurisdiction of the person and the subject-matter. There is no jurisdictional question raised by defendant's objections. The tax was properly assessed, and no error, irregularity, or illegality is claimed to exist, except upon the two grounds above stated, neither of which goes to the question of jurisdiction. As held in United States T. Co. v. Mayor, 144 N. Y. 493, 39 N. E. 384, the board of trustees, under the facts stated, in making the assessment complained of, "were acting judicially in assessing the plaintiff, and their action had all the force and effect of a judgment, which, while open to review by some direct proceeding prescribed by law, is secure against collateral attack." Swift v. City of Poughkeepsie, 37 N. Y. 511.
The board of trustees having acted judicially in levying the assessment, their action cannot be attacked collaterally, or by way of a defense in an action to recover the amount of the assessment. If the assessment were void, because of want of jurisdiction, then the defendant could have established a defense in this action, without having first brought an action or a proceeding to set aside the assessment. Newman v. Supervisors, 45 N. Y. 676, 685.
Merritt v. Village of Portchester, 71 N. Y. 311, 27 Am. Rep. 47, cited by the defendant, I do not think applicable to this case. In that case, the commissioners had no authority to act. They had not qualified as the law required, and were not the legal, duly qualified, taxing body. Therefore the objection taken was a jurisdictional questior., and the assessment which they attempted to make was a nullity and void.
Gerlach v. Brandreth, 34 App. Div. 197, 54 N. Y. Supp. 479, is a taxpayer's action, and has no application to this case at bar. A hold