Board of Health v. Valentine — 32 N.Y. St. Rep. 919

Majority

p. 919

The Board of Health of the Village of New Rochelle, App’lt, v. Eugenie Valentine, Resp’t.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

1. Nuisance — Parties—Board of health — Laws 1885, chap. 270.

An action to recover a penalty imposed by a board of health, organized under Laws 1885, chapter 270, for the maintenance of a nuisance, is well brought in the name of the board without naming the individual members thereof.

2. Same — Liability op owner of premises.

The owner of premises, although not in possession, is liable for the maintenance of a nuisance thereon, where he receives rent with knowledge thereof.

3. Same — Service of order.

Where the nuisance complained of comes under the general sanitary regulations, it is not necessary to serve the order upon the occupants and owner of the premises.

Appeal from judgment dismissing the complaint on the ground that there is no party plaintiff of which the court can take cognizance, and that the complaint does not state facts sufficient to constitute a cause of action.

Action to recover a penalty of $100 imposed by plaintiff upon defendant for non-compliance with its regulations and failing to abate a nuisance.

Plaintiff was organized under chapter 270, Laws 1885. The nuisance complained of is charged to exist by reason of slop, waste water and foecal matter being allowed to run from premises owned by plaintiff into the street. Said premises were leased to ther persons.

Charles H. Young, for app’lt; Noxon Bros., forresp't.

If the defendant intended to challenge the right of the board to sue in its corporate name he should have demurred, but, waiving that, we think the action was well brought The principal object of having a proper party plaintiff is to prevent the possibility of the defendant having to answer twice for the same cause of action.

The statute under which this action was instituted provides that the penalty “ may be sued for and recovered, with costs, by said board, in the name of such board, in any court having competent jurisdiction.”

p. 920

It seems too plain for argument that this action was well brought in the name of the board without naming the individual members thereof. The Board of Health of the Village of New Brighton v. William Casey et al., 18 N. Y. State Rep., 251.

The case of Gould et al. v. The City of Rochester is not an authority against the proposition, as the question was not raised nor passed upon, and, besides, that action was brought under a different statute, to wit, chap. 324 of the Laws of 1850, and chap. 351 of Laws of 1882.

It ought to be enough to cite the case of Ahern v. Steele, 115 N. Y., 209 ; 26 N. Y. State Rep., 295, to show that in such a case as this the landlord is responsible for maintaining the nuisance.-

The principle that the owner of the premises is liable by reason of defective construction and dangerous condition of premises, notwithstanding the premises are, at the time, in possession of a. tenant, if the defect existed when the owner leased the property, is very old and well settled. Moody v. Mayor, 43 Barb., 282 ; Cheetham v. Hampson, 4 T. R., 318; Rosewell v. Prior, 2 Salk., 460 ; S. C., fully reported in 1 Lord Raymond, 713. In the case last cited it was held that receiving rent for a nuisance was equivalent, to maintaining it. See, also, Moak’s Underhill on Torts, 253-255; Wood on Nuisances, 76-80; Owings v. Jones, 9 Md., 108 .

The nuisance complained of came under the general sanitary regulations, and, hence, it was not necessary to serve the order upon the occupants and owner of the premises under § 3, subd. 6, chap. 270 of Laws of 1885.

Judgment, reversed and new trial ordered, costs to abide event.

Barnard, P. J., concurs.