Majority
p. 886Isaac S. Lydecker, Daniel Callahan and Charles McElroy, as the Board of Health of the Village of Nyack, Resp’ts, v. Richard E. Eells, App’lt. (Supreme Court, General Term, Second Department, Filed December 10, 1888.)
Headnote
Boabds of health—Abatement of nuisance—Who liable—Service of notice—Laws of 1885, Chap. 370, §§ 8, 4.Under the provisions of Laws 1885, chapter 370, §§ 8, 4, which requires an order of a board of health for the removal of a 'nuisance to be served upon any occupant and the owner of the premises where the nuisance exists, and in case of disobedience, authorizes the removal of such nui sanee, and makes the expense thereof a- charge on the occupant, an order directed to one having an interest in the premises under an agreement to purchase, and served on his agent, who was in the occupancy of the premises, does not require the agent to remove the nuisance, nor render him liable for the cost of such removal.
This action was commenced in a justice’s court in Rock-land county against Richard P. Eells and Richard DeCantillon to recover the cost and expense of removing and abating an alleged nuisance on the premises belonging to the said Richard DeCantillon, and managed and'in part occupied by the appellant, Richard P. Eells, pursuant to section 4 of chapter 270 of the Laws of 1885. The action was tried in a justice s court, before a jury, in the town of Orangetown, county of Rockland, and- a verdict rendered in favor of the plaintiffs and respondents, and against the Said Richard DeCantillon and the appellant, Richard P. Eells, for the sum of $11.75, and judgment was thereupon‘ entered by the justice in favor of the plaintiffs and respondents and against the defendants, Richard DeCantillon and Richard P. Eells, for the sum of $20.42. Thereafter the. said defendants appealed to the county court of the county of Rockland from the said judgment rendered in the said action. The county court reversed the said judgment as to the said Richard DeCantillon and affirmed said judgment as to the defendant. Richard P. Eells, the appellant herein; whereupon judgment was entered in the county court of Rockland county ón the 4th day of January, 1888, for the sum of $48, 78, damages and costs, from which judgment this appeal was taken.
Marcena M. DicJcinson, for appl’t; Arthur J3. Tomp-Mns, for resp’ ts.
The plaintiffs compose the board of health of Nyack, under chapter 270, Laws of 1885. A nuisance was found to exist upon certain premises in that village. . The premises were owned by the Mutual Life Insurance Co. of New York. One, DeCantillon, had agreed to purchase and had possession under the agreement, and Eells, the defendant, was an occupant of the property, and
p. 887
the agent of DeCantillon. The nuisance was in an offensive and dangerous privy vault. By subdivision 6 of section 3' of the act creating boards of health, such boards are authorized to make special orders for the suppression and removal of special nuisances. In these cases, copies of the orders were.required to be served upon “any occupant or occupants and the owner or owners of any premises where any such nuisance shall exist, or to post the same in some conspicuous place on such premises.” In case of a non-compliance “with any order or regulation which shall have been served or posted as provided in subdivision 6 of section 3 of this act, the said board or its servants or employees may lawfully enter upon any premises to which such order or regulation relates and suppress or remove the nuisance * * * and the expense thereof shall be a charge upon the occupant or any or all of the occupants of said premises, or upon the person or persons who have-caused or maintained the nuisance or other matter of the description aforesaid, and may be sued for and recovered with costs by said board in any court having jurisdiction. It is manifest from these two provisions that the board were to decree a nuisance or other matter detrimental to health, and to serve a copy of the order on occupants and owners, or to post the order on the premises. It is a disobedience of this order which gives the right of action for the cost of a removal of the nuisance by the board. It is: barely possible to infer the formal passage of a resolution to suppress this nuisance. It was reported a nuisance and!. ordered suppressed. The only order issued was directed to DeCantillon requiring him to remove the nuisance within fifteen days. This was not served upon him, but- upon Bells, the agent. The agent was bound to do nothing under the order and no occupant of the premises was mentioned either as an individual or as a class. The legislature, intended either occupant or owner or person who maintained a nuisance, who failed to obey the order to suppress,, liable to an action for disobedience of order. Under the general words giving action against these classes, no more was intended than to give such action to persons who are disobedient to orders made by the board. Particular names and particular acts are required when boards of health wish to sue for the expenses of doing the required act, in case of disobedience.
The judgment should be reversed, with costs.
Pratt, J., concurs.