King v. Brewer. or deception, she voluntarily continued to cohabit with defendant, she cannot maintain an action for the annulment of the marriage (Code Civ. Pro., § 1750). The testimony on this point is not very satisfactory. She learned after the marriage that he had kept a pool room previous to the marriage; but whether or not she left him immediately after such fact had come to her knowledge or not does not appear. When he was arrested for obtaining money on false pretenses she visited him in prison, and sympathized with him because she thought it was "his first offense," and that he would do better after he got out. This would imply that at that time she had not yet heard of the pool room, since she thought the charge upon which he was arrested was his first offense. It appears from the testimony that after he came out of jail she did not again cohabit with him. I think, therefore, it is safe to assume that she did not condone the fraud or deception by voluntarily cohabiting with him with a full knowledge of the facts constituting the fraud. When I look for some precedent to sustain a decree of annulment herein, the result is not encouraging; but the authorities on the other side are not conclusive. The case of Klein v. Wolfsohn (1 Abb. N. C. 134) would seem to hold against plaintiff. But in that case the plaintiff "blindly relied upon defendant's representations as to his character and property," and "heedlessly" entered into the marriage without informing herself of the character and means of defendant; whereas in the case at bar the plaintiff had excellent reasons for believing implicitly in the good character of the defendant. She had known him intimately for two years, and everyone spoke highly of his moral worth, including those in whom she had perfect confidence, i. e., her brother, who had made investigations. as to defendant's character, her pastor, and others. Let us reverse the position of the parties in the case at bar. Let us suppose the wife bore an excellent reputation and King v. Brewer. everyone spoke highly of her, and those who knew her, and in whom the husband had perfect confidence, assured him that she was above all reproach, and he married her, believing her to be a good, virtuous woman; and then suppose that, after the marriage, he learned that she had been, at the time of the marriage, a prostitute; could he not maintain an action to annul the marriage for fraud? I think he certainly could (See Carris v. Carris, 24 N. J. Eq. 516; Scott v. Schufeldt, 5 Paige, 43). And why, then, should not the same rule hold good where the positions are reversed, and it is the wife who seeks to have the marriage annulled, and to be freed from a criminal whom she has married in the conviction t t he was a good and worthy man? This court, at Equity Term, has gone very far in maintaining this proposition. In the case of Keyes v. Keyes (6 Misc. 355), the doctrine is laid down that where defendant, by fraudulently representing himself as an honest, industrious man, induced plaintiff to marry him, when, in fact, he was a professional thief, whose picture was in the "Rogues' Gallery," and who, at the time of the trial, was in State Prison, the case was within the provisions of § 1743 of the Code, and that a decree of nullity on the ground of fraud should be granted. The facts in that case are not quite the same as in the case at bar, but the same principle applies to both cases. The learned counsel for the plaintiff, in his excellent brief, cites a number of cases tending to show the gradual progress from a somewhat Puritanical view of the subject, as exemplified in the case of Scroggins v. Scroggins (3 Devereaux, N. Car. 535), towards a more liberal view, as manifested in the case of Keyes v. Keyes, above referred to. I do not think that any of the cases can be regarded quite as a precedent for the case at bar, although some of them go far towards sustaining this court in granting the decree here asked for. In this case, as in the Keyes case, there will be no children to suffer by reason of the annulment of the marriage. Justice and right seem to require McGuire v. Bloomingdale. the separation of these two lives, so wrongly and unfortunately united. A court of equity does not go too far when it gives this young plaintiff, who has been grievously wronged while doing no wrong herself, the opportunity to commence life again free and untrammeled. After a careful consideration of the circumstances of the case, I am of opinion that a decree annulling the marriage contract should be granted. MCGUIRE v. BLOOMINGDALE. N. Y. Court of Common Pleas, Special Term; May, 1894. Injunction; nuisance.] A preliminary injunction will not be granted. pending an action by one residing in a busy city thoroughfare to restrain the keeper of an adjoining dry goods shop from running an electric light engine and operating a pneumatic blower for conveying cash, etc., as the noise from the operation of such machinery, considering the locality of the premises, would not necessarily be a nuisance, and its continuance during the action would not do plaintiff an irreparable injury, nor render the final judgment ineffectual. Motion for injunction pending an action brought by Joseph McGuire against Lyman G. Bloomingdale. The facts are fully stated in the opinion. William Hildreth Field, for the motion. Otto Horwitz, opposed. BOOKSTAVER, J.-The plaintiff seeks to obtain a preliminary injunction pending this action, which shall restrain and enjoin the defendants from running the engines, VOL. XXXI.-22 McGuire v. Bloomingdale. machinery and electric light plant in their premises; also, from running the pneumatic blower used for the conveying of cash receptacles in tubes to and from the rooms and counters in defendants' place of business, and also from loading and unloading goods in front of plaintiff's premises, and also from allowing their employees to stand in front of plaintiff's premises. From the papers it appears that the defendants are drygoods merchants, occupying a large building on the corner of Third Avenue and Fifty-ninth Street, covering the entire front on Third Avenue, and six or eight houses on Sixtieth Street, down to the plaintiff's premises. It also appears that the machinery, the running of which the plaintiff seeks to enjoin, is necessary for the proper lighting and heating of their premises. The dynamos complained of are shown by defendants' affidavits to be noiseless, and do not cause vibration of the buildings in which they are used, and that the pneumatic blower creates but little noise. The defendants also deny that they load or unload their wagons in front of the plaintiff's premises, or that their employees congregate in front of the same. They show, on the contrary, that all goods are delivered on Fifty-ninth Street and not on Sixtieth Street. It cannot be doubted that a court of equity has jurisdiction to interfere by injunction to prevent the erection or maintenance of a nuisance which will produce a serious or irreparable damage; but in all such cases it must clearly appear that the thing sought to be prohibited is a nuisance, and of a character to do the plaintiff irreparable injury if not at once prevented. If this is not done, the court will not interfere (Mohawk Bridge Co. v. Utica & Schenectady R. R. Co., 6 Paige, 555; Hudson & Delaware Canal Co. v. N. Y. & Erie R'y Co., 9 Id. 322). While preliminary injunctions which only prevent the defendant from doing an act which would render the final judgment ineffectual are freely granted, those which in effect determine the litigation, and give the same relief which it McGuire v. Bloomingdale. is expected to obtain by the judgment, should be granted with great caution, and only when required by imperative necessity (Bronk v. Riley, 50, Hun, 489; Ives v. Smith, 3 N. Y. Supp. 645; Young v. Campbell, 75 N. Y. 525; Electric Power Storage Co. v. Whiting, 17 Weekly Dig. 263). And again, regard should be had to the nature and extent of the injury which the plaintiff would suffer if the injunction should be withheld, as well as to the consequences to the defendant of the injunction should it be granted pendente lite (Bruce v. Delaware & Hudson Canal Co., 19 Barb. 371). In the latter case the court says: "It is not every case, even of a clear violation of the plaintiff's right, that entitles him to an injunction to restrain such violation." Against an act, which is not in itself necessarily a nuisance, the injunction should not be granted until the question whether it is a nuisance or not, has been determined in a preparatory issue (Mapleson v. Del Puente, 13 Abb. N. C. 144). Under all the facts in this case, I do not think the noise, if any, or the vibration are sufficient to constitute a nuisance. Whether noise alone constitutes a nuisance depends upon circumstances. Trifling or occasional noises, dependent upon the ordinary use of property, or in pursuance of an ordinary trade or calling, do not ordinarily constitute a nuisance, although those in the neighborhood are disturbed. The quality or character of the noise may be an important element in determining the question of nuisance or no nuisance. The fact that certain persons annoyed are super-sensitive is not to be taken into account, the average susceptibility being the test. The matter of locality has much to do with whether it is a nuisance or not. In the case under consideration, the plaintiff's premises are within a few doors of Third Avenue, where the elevated railroad and cable railroad are in constant operation, and it is a notoriously busy thoroughfare; and the same is true of Fifty-ninth and Sixtieth Streets. In fact, it |