The material facts are as follows:
Prior to 1907 defendant’s line south of Seventy-second street, or slightly below, at which point it connected with defendant’s Sixtieth street terminal yard, consisted of its regular double track and no more. In consequence of the inadequacy of the Sixtieth street yard to furnish convenient facilities for switching, classifying and storing cars and for other incidents of a terminal yard, defendant acquired by condemnation additional land on which, from Seventy-second street to north of Ninety-second street, between the years 1887 and 1907, at which time Eiverside drive was developed and improved practically as it is at present, it laid two additional tracks parallel to its main line, which tracks, in conjunction with its original double tracks, it has since used as an extension of its Sixtieth street yard and for practically the same purposes as that yard is used. The Sixtieth street yard is antiquated, no material change having been made in its area or arrangement for some thirty-five years, to which fact, and a greatly increased volume of traffic, *483may be attributed in large degree the necessity for the Seventy-second street extension. In consequence of the constant use day and night of the tracks north of Seventy-second street for yard purposes, residents of Riverside drive, a street of unique beauty, paralleling the Hudson river and the defendant’s line of road (from which it is separated by a strip of varying width laid out as a public park, improved on its easterly side only by private dwellings and apartment houses, the district being exclusively one of residences), are seriously disturbed in their comfort, rest and repose, which is broken by noise from steam locomotives, their straining and puffing, bells and whistles, the switching and bumping of cars, by unnecessary and preventable smoke from the engines, and by offensive odors from cars of live stock, which not only traverse the tracks but are permitted to lie thereon for hours at a time pending their distribution to the main yard below.
Plaintiff is the owner and one of the occupants of an apartment house located on the southeast corner of Eighty-sixth street and Riverside drive, and is among the sufferers from the conditions above described, although there is no proof that he has suffered pecuniary damage by depreciation of the value of his property or otherwise. Although in cases of alleged private nuisance, no recovery can be had where mere annoyance results, such exemption from liability extends only to cases where there is no material injury. But if the conditions complained of affect a district of residences, it is not necessary that pecuniary loss should be shown; it is sufficient that they are offensive to the senses, disturbing to quiet rest and sleep, and render “the enjoyment of life and property uncomfortable.” (Hutchins v. Smith, 63 Barb. 251, 254, 255; Garvey v. Long Island R. R. Co., 159 N. Y. 323, 328, 329; Booth v. B., W. & O. T. R. R. Co., 140 id. 267, 276, 277; Bohan v. Port Jervis Gas Light Co., 122 id. 18.) I take the rule to be that although a railroad or other public corporation is not liable for injuries to real property which are a necessary incident to the lawful and proper exercise of its franchise, such exemption from liability does not extend to turntables (Garvey v. Long Island R. R. Co., supra), pumping stations (Morton v. Mayor, etc., 140 N. Y. 207), gas retorts (Bohan v. Port Jervis Gas *484Light Co., supra), engine houses (Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10), repair shops (Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U. S. 317), or similar accessories, the particular location of which is largely if not entirely within the control of the corporation, and in the location of which the corporation acts in a private rather than a public capacity. (Garvey v. Long Island R. R. Co., supra, 330; Richards v. Washington Terminal Co., 233 U. S. 546.) That the case of a railroad yard is governed by the same principle seems to me plain, and that the defendant’s premises complained of herein are such a yard I have no doubt. The court has found that they are practically no more than an extension of the Sixtieth street yard, and that they are operated under defendant’s rules and regulations affecting that yard. In view of the extent and nature of their use, the law defines them as a yard. (Title “Railroad Yard,” 33 Cyc. 1407.) In this respect, the conditions are strikingly similar to those in People ex rel. City of Buffalo v. N. Y. C. & H. R. R. R. Co. (156 N. Y. 570).
Are there any facts of public necessity which justify the denial of the injunction to which I deem plaintiff otherwise entitled ? The 37 th finding is to the effect that “it is not necessary or requisite for the proper maintenance, operation and use of the defendant’s railroad that cars should be stored on the sidings between 72nd and 96th Streets.” By the 38th finding it appears that “it is not requisite or necessary * * * that incoming freight cars should be classified on ” those tracks; that both of the aforesaid uses is due to the congestion of traffic in the Sixtieth street yard, but that this congestion is due to the fact that that yard is badly arranged and has not been improved in thirty-five years. It is true the court found that the defendant “ is now making full use of its facilities to their full capacity,” and “ that to effect the inmovement and outmovement of freight and other trains between Spuyten Duyvil and St. Johns Park with as little delay as possible, the full use at all times of the four tracks ” between the above points is necessary, and “ that the capacity of said yard cannot be materially increased without the acquisition of about nine acres of land, title to which is in the City of New York, and about two acres of land, *485title to which is in private owners ” (15th, 19th and 21st findings).
The essence of the foregoing is that the defendant’s use of the tracks north of Seventy-second street for yard purposes is only necessary to enable it to handle its business “with as little delay as possible,” which I construe to mean the utmost dispatch. It is not found that a prohibition against its improper use of these tracks will result in any unreasonable delay in handling traffic. All that the public is entitled to is reasonably prompt service. I do not think defendant should be permitted to maintain a continuing nuisance to the injury of one of the best residential sections of the city and seriously affecting the rights of residents of such district, merely to enable defendant to serve the public with a measure of expedition beyond that to which it is legally entitled.
As to smoke the finding is that it is due to the use of soft coal by engines attached to incoming and outgoing trains, the use of which kind of fuel is not necessary.
It is true that, in pursuance of legislative authority, plans for radically changing its motive power and method of operation were some years ago prepared by defendant and submitted to the local authorities for approval. How long the misfortunes which so far have attended their practical progress may continue seems wholly speculative. But it is possible that an injunction herein will prove to be a potent and healthful stimulus to all parties concerned and serve to expedite the reconciliation of differences which might otherwise continue indefinitely to the further injury of plaintiff and his fellow-sufferers.
The decree, however, is too broad, due to the vagueness of certain of its terms. It should be modified by striking out the words beginning with “and from in any other manner ” to and including ‘(constitute a nuisance ” and as so modified affirmed, with costs.
Dowling, J., concurred.
Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.