People v. Tendetnick

Finch, P. J. (dissenting).

This defendant has been held guilty of the criminal offense of permitting a public nuisance because he legally let the basement of his "two-family house to a club of young people for dancing to radio music two or three times a week. The next-door neighbor and the man across the street have been annoyed, but the comfort, repose, health or safety of more of the public must be involved before it can be held that a public nuisance has been created as distinguished from private redress for those immediately affected.

The defendant has been convicted of knowingly permitting a club *14to be operated in his house in such manner as to constitute a public nuisance in violation of section 1533 of the Penal Law, which reads as follows: “ Permitting use of building for nuisance * * *;

A person who: 1. Lets, or permits to be used, a building, or ■ portion of a building, knowing that it is intended to be used for committing or maintaining a public nuisance; * * * Is guilty of a misdemeanor.”

It appears that the complaint was made against the defendant by a next-door neighbor who had a grudge against the defendant. The defendant resided in a two-family house. He rented the basement to a club of young people, who would assemble there two or three times a week, at which time there was dancing to radio music and noise that might be expected from a gathering of young folks. The defendant had received a permit for the use of the premises for club purposes, so that there is nothing inherently unlawful in the use of the premises. It is simply the manner of such use that is claimed to be objectionable.

The facts adduced by the People failed to show that the club was so operated as to constitute a public nuisance. The testimony shows that only the occupants of the adjoining premises and the premises immediately opposite were annoyed by the noise of the members of the club and that much of the annoyance, if not the greater part thereof, took place after the members left the club premises and consisted of their loud talking and calling to each other while outside the premises. While there was testimony that the noise could be heard a half block away, the same witnesses so testifying admitted that the noise could not be heard while they were within their dwellings but could only be heard from the street. It thus appearing that the noise could not be heard within dwellings save only the house next door and perhaps across the street, it cannot be said that the repose or health of a considerable number of people was affected. Hence a case was not made out as a matter of law. The only basis for claiming this noise constituted a public nuisance is that it interfered with the repose and sleep of the community. The acts complained of might well constitute a private nuisance to the immediate neighbors directly affected thereby, but that it is not of such a character as to constitute a public nuisance, which is defined as an act that annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons.

The case would seem to fall within the authority of People v. Cooper (200 App. Div. 413), in which it was said: That the noise and vibration caused by the machinery and the odor, said to be offensive, of the soap and other materials used in washing, annoyed *15the witnesses hving next door may be conceded. This might be ground for a private action for injunctive relief, but I doubt whether the acts complained of measure up to an act which ‘ annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons.’ ”

The judgment should be reversed and the defendant acquitted as a matter of law.

Judgment affirmed.