Nickerson v. Crawford — 25 Abb. N. Cas. 91

Majority

p. 91

NICKERSON v. CRAWFORD.

N. Y. Supreme Court, First District, Special Term ;

June, 1890.

Headnote

Parties; substitution of assignees.] In an action to enjoin the continuance of a nuisuance on adjoining premises, where" the plaintiff pending the action transfers the property affected by the nuisance, the right of action passes to his transferee, and the latter is entitled to be substituted as plaintiff.

Motion for an order substituting Caleb V. Knevals and Elihu B. Frost, as assignees of P. William Nickerson, as „ plaintiffs.

The action was brought to restrain defendants from eon- . tinuing the use of a stable opposite plaintiff’s premises, on the ground that the same was a nuisance.

Plaintiff subsequently conveyed his premises to P. William Nickerson and at the same time assigned to him all claim and demand against defendant. Subsequently said P. William Nickerson made a general assignment for benefit of creditors to said Caleb B. Knevals and Elihu B. Frost, who make this application for an order of substitution.

John C. Coleman, for motion.

R. A. Pryor, in opposition.

I. No right of proposed plaintiffs was infringed originally by the nuisance; and the subsequent injury to their interest will not support an action previously commenced. For such injury they must sue afresh.

II. The specific grievance is the disturbance of plaintiff and his tenants in the occupancy of the dwellings, i. e., an injury to their personal comfort—a personal injury. At common law an action for a personal injury did not survive, and by Code Civ. Pro., § 1910, such action is not assignable

p. 92

III. Such a nuisance as this is classified in the category of personal injuries (3 Chit. Bl. pp. 119, 113).

IV. The right to enjoin a defendant does not survive his death (Jackson v. Elwood, 82 N. Y. 363 , 365). The right of recovery for injury to health does not survive (Scott v. Brown, 24 Hun, 620 ; Victory v. Knauss, 4 N. Y. State Rep. 33); and survivability and, assignability are convertible terms (4 N. Y. State. Rep. 34).

V. The assignees cannot recover on the right of the plaintiff ; for that expired on his conveyance of the property (23 State Rep. 335); nor on their right, for that rested after action commenced.

This action is brought by plaintiff as owner of a house and lot in the City of ISTew York, to restrain a nuisance maintained by defendant upon adjoining property, and for damages caused by the nuisance. It is the application for equitable relief that gives a court of equity jurisdiction, and the action thereby becomes an equitable action. That cause of action, however, vested in the plaintiff as the owner of the adjoining premises ; as a mere individual, disconnected with his ownership of the property, he would have no right of action to abate the nuisance; it is only because of the special injury sustained by him as owner of the adjacent premises that he can maintain an action in equity to restrain the continuance of the nuisance. The action is, therefore, not one for personal injury, but an equitable action for an injunction, and for the damages caused by the wrongful act complained of, and the depreciation of the rental value of the premises owned by plaintiff, would be the measure of damages if he succeeded in establishing that the defendants maintained a nuisance. On the transfer by plaintiff of the property to restrain an injury to which the action is brought, the right of action passed to the transferee, and I think he should be substituted as the plaintiff in this action. Motion will, therefore, be granted, with $10 costs to abide the event.