Robinson v. Smith

After a careful perusal of the evidence found in the appeal book, we are of the opinion that the findings of fact made by the referee are in accordance with the weight of the evidence, and while we find some conflict in the evidence, we think we should accept the findings of fact made by the learned referee. In accepting such findings we follow well-recognized authorities. Roosa v. Smith, 17 Hun, 138 ; Sinclair v. Talmadge, 35 Barb., 602 ; Titus v. Perry, 13 N. Y. State Rep., 237.

In Hay v. Cohoes Company (2 N. Y. [2 Comstock], 162), Gardiner, J., in speaking of the rights of adjacent owners, said: “They could not pollute the air upon the plaintiff’s premises.”

In Fish v. Dodge ( 4 Denio, 316 ), Bronson, Ch. J., said: “ It is a rule of the common law that a man should so use his own as not to hurt another, and therefore if one carry on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages. * * * It is not necessary to a right of action that the owner should have been driven from his dwelling; it is enough that the enjoyment of life and property has been rendered uncomfortable.”

In Hutchins v. Smith ( 63 Barb., 252 ), the doctrine of the cases just referred to, was stated, and many cases illustrative thereof collated and commented upon. We think the referee in his findings of fact and conclusions of law, has kept within the doctrine of the cases to which we have adverted.

Second. We are also of the opinion that the plaintiff was entitled to maintain an action wherein he should recover the damages sustained, and have an injunction requiring the abatement of the nuisance. In the case last cited, it was said, viz: “ There is ample authority to establish the right of the plaintiff to maintain a suit in which he may both recover damages for a nuisance, and remove it by the aid of the law. Citing 37 Barb., 301 ; 3 Sanf., 282; 46 Barb., 568 ; 56 Barb., 480 .”

In section 1660 of the Code of Civil Procedure, it is provided, viz: “An action for a nuisance may be maintained in any case, where such an action might have been maintained under the laws in force, immediately before'this act takes effect,” and in Adams v. Popham ( 76 N. Y., 410 ), it was held that “A person erecting or maintaining a common nuisance is liable to an action at the suit of another who has sustained special damages therefrom.”

In section 1661 of the Code of Civil Procedure, it is provided, viz: “A person by whom the nuisance has been erected, and a person to whom the real property has been transferred, may be joined as defendants in such an action.” And in section 1662, it is provided, viz: “A final judgment in favor of the plaintiff may award him damages, or direct the removal of the nuisance, or both.”. Before the

Third. We think the action was maintainable against both of the defendants, and that the facts found establish a liability of both the defendants for the continuance of the nuisance, and that they were both proper parties for the purpose of awarding damages, and ordering an abatement of the nuisance.

In Rosewell v. Prior (2 Salk., 460), the action was for a continuance of the nuisance. It was held that the landlord and tenant were both liable, and in speaking of the liability of the landlord, the court said: “ He hath also rent as a consideration for the continuance, and therefore ought to answer the damage it occasions. Citing Jones, 272. Receipt of rent is upholding.”

In Fish v. Dodge ( 4 Denio, 318 ), we find nothing inconsistent with what has already been said. It was there remarked that a defendant could not be liable for a wrong which was actually committed by others who were not in his employment, “unless he knew or had reason to believe that he was letting the. property for a use which must prove injurious to the plaintiff.” In the case in hand, the defendant Smith knew of the purpose for which the barn was erected, and the purpose for which it was to be used, and the manner in which it was used; although he was a resident of the city of Brooklyn, he had a summer residence near the village of Cooperstown, which he frequented summers.

In his answer served in this action, he admitted and stated: “That on or about the 1st of April, 1887, the defendant Ellsworth took possession of said premises of this defendant, and has ever since remained in the possession thereof, and now is in the possession of the same as the tenant of this defendant. That in or about the month of April, 1887, the defendant Ellsworth, with the knowledge and consent of this defendant, erected upon said premises a barn, and has used and occupied the same for livery purposes, with the knowledge and consent of this defendant, which barn so erected by said defendant Ellsworth this defendant alleges was so erected at his (said Ellsworth’s) own expense and risk, with the right to remove it from said premises at any time he might wish, or when this defendant should make other disposition of said premises.”

Before this action was commenced he was informed of the nuisance, and requested to abate the same, but neglected so to do. Besides, it is apparent from the authorities, that where a barn is built in a certain way, and to be used in that way, and would necessarily, under ordinary circumstances, be a nuisance if let to a tenant to use in that way, and

The learned counsel for the appellant supposes that Pickard v. Collins aids his position that the defendant Smith was not liable. We think otherwise. In delivering the opinion in that case, the court observed: “If the use in that way would necessarily, under ordinary circumstances, be a nuisance, the proposition is correct; but if it proved a nuisance by reason of water in the cellar, and that was a special unusual circumstance, the defendant was not liable for the nuisance, unless he knew, or had reason to believe, when he let the barn, that the use of it in the ordinary mode would prove a nuisance.” We see nothing in the case inconsistent with the views already stated.

Fourth. Nor do we think the testimony of Dr. Bathrop when read in connection with the evidence found in the appeal book required the referee to find otherwise than appears by his report.

Nor do we think Flanagan v. Hollingsworth (2 How. N. S., 391; S. C., affirmed 108 N. Y., 621 ), aids the appellants. That case differed very widely from the one now in hand in its facts. It turned upon the construction of a covenant, “ not to erect any building for or to carry on, upon certain premises certain enumerated trades, cow-stables or hog-pens or any other dangerous, noxious, unwholesome or offensive establishment, trade or calling or business whatsoever,” and it was held that under the exact language of the covenant a livery stable was not included and hence the plaintiff was not entitled to an injunction.

We have looked at the several requests made to the referee to find certain enumerated facts and his refusals. In many instances there was a conflict in the evidence bearing upon the requests which were submitted to the referee. In such cases the refusal of the referee to find furnishes no ground for a valid exception. Porter v. Smith, 7 Civil Procedure Rep., 195. In other instances it is quite apparent that the findings asked for were not material to the decision of the case or would not have been beneficial to the defendants. The refusals and exceptions taken thereto furnish no ground for alleging error. Callanan v. Gilman, 107 N. Y., 360 ; 12 N. Y. State Rep., 21; Stewart v. Morss, 79 N. Y., 629 .

Sixth. We think no error was committed in allowing the plaintiff to read a portion of the defendant Smith’s answer and the refusal to require the plaintiff to read the whole thereof as a condition of reading part in evidence. Parmenter v. Boston, H. T. and W. R. Co., 37 Hun. 354 ,

Seventh. An objection was taken to evidence offered to show the condition of the atmosphere in the plaintiff’s dwelling from the time of the erection of the barn down to the time of the trial, and an especial objection was taken to the evidence as to its condition subsequent to the commencement of the action. The referee overruled the objection and the defendant excepted. We think no error was committed.

In Barrick v. Schifferdecker (16 N. Y. State Rep., 449), it was held that where an action was for both legal and epuitable relief, “ it was proper for the court to allow a recovery “for damages done to the day of the trial.” See, also, Beir v. Cooke, 37 Hun, 38 .

Eighth. We think no error was committed in allowing the witness to describe that after the erection of the barn there had been a great “ congregation of flies about the premises.” It was a legitimate fact to be considered by the referee in connection with the other evidence.

Ninth. Defendant took objections to evidence of the rental value of the premises before the barn was erected, and the rental value after the livery barn was erected. We think the evidence was legitimate, and that the referee committed no error in receiving the same.

In Barrick v. Schifferdecker (16 N. Y. State Rep., 449), it was held “that the measure of damages to the rental value of the house was the difference between the rental value when the house was free from the effects of the nuisance, and with it during the period of its continuance.” Following the case of Francis v. Schoellkopf, 53 N. Y., 152 .

Tenth. At folio 253, the plaintiff was allowed to answer a direct question, and state that he never said to the defendant Ellsworth, when he was about putting up the barn, “that it was all right.” The defendant Ellsworth had given testimony to the effect in substance. We think it was allowable to put a direct question to the plaintiff to negative what had been testified to by the defendant Ellsworth.

Several other exceptions are referred to by folio in the appellant’s points, but no argument is made in respect to the same. We, perhaps, would be right in assuming that as there is no argument or authority produced in regard to such exceptions, that they are frivolous; however, we have carefully examined all the exceptions thus loosely and summarily referred to, and are of the opinion that they furnish no ground for interference with the report of the referee. Section 1003 of the Code of Civil Procedure. Whether an injunction should be allowed or not in such a case rests in the sound discretion of the court of equity, and in Davis v. Lambertson ( 56 Barb., 484 ), the late Judge Foster observed:

Judgment affirmed, with costs.

Martin, J., concurs.

I concur, except I doubt the liability of the defendant Smith for any damages accruing prior to December 13, 1887.