ELGAR v. KRESS & CO.


280 A.D. 621 (1952)

Anna M. Elgar, Respondent, v. S. H. Kress & Co., Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

November 12, 1952.


Attorney(s) appearing for the Case

Harry H. Wiggins of counsel (Charles F. Houghton with him on the brief; Duer, Strong & Whitehead, attorneys), for appellant.

Sidney S. Levine of counsel (Levine & Meckler, attorneys), for respondent.

DORE, J. P., COHN and VAN VOORHIS, JJ., concur in Per Curiam opinion; BREITEL, J., dissents and votes to affirm, in opinion, in which CALLAHAN, J., concurs.


Per Curiam.

Plaintiff, the owner of a private dwelling, seeks to enjoin defendant from using its building across the street, which was recently constructed for commercial purposes upon the ground that (1) it had erected said building in violation of the zoning resolutions of the City of New York and (2) that defendant's use of the building constitutes a nuisance.

The record shows that defendant was the owner...

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