121 N.Y.S. 494 | N.Y. App. Div. | 1910
This action is brought to enjoin the maintenance of a nuisance. The particular act of the defendant complained of is causing or allowing “ black sihoke, soot, dust and cinders to escape from its smokestack and to pass over, upon and through the streets and public places of the said City of Yonkers, or upon the property and persons of the residents thereof.” There is a finding of fact that the smoke, containing particles of dust, soot and cinders is carried by the wind at certain times over the property of the inhabitants of the city, that it enters their houses and apartments, and “falls upon them and their property, and upon the streets and public places of the plaintiff.” There is a further finding that it renders it “uncomfortable, disagreeable and annoying for [persons], to remain out doors on their own premises or to pass along said public streets.” Although very many witnesses, were called by the plaintiff, and although a large amount of testimony was taken, constituting a printed record of several hundred pages, scarcely any .of such testimony related to any discomfort or annoyance upon any public street or place. Several of the witnesses testified that they never noticed anything in the shape; of dust, soot or cinders which fell from the smoke'upon the public. street.■ Some of the witnesses testified that there was a considerable amount of d.ust resulting therefrom, which laid, in the streets and upon the sidewalks, and some witnesses testified that upon occasions while upon the public street particles of soot or dust fell upon them and upon their clothing and got into their eyes, but there is no évidence of any in jury or even discomfort resulting therefrom. As one of the witnesses testified, it did not interfere with his sight at all, that he “rubbed it out.” There was no evidence that the streets of the city-were, máde unsafe or insecure, or that the health of the public while using them was affected, and the evidencé with regard to discomfort or annoyance on the part of persons passing over them was of such a slight and trifling character that a eourt of equity would not be justified for that reason alone in enjoining the carrying on of alarge and important manufacturing enterprise, such as that of the defendant, in a portion of the city given over to a considerable extent to manufactures. (Wood Nuis. [3d ed.] 679; Genet v. Del. & Hudson Canal Co., 122 N. Y. 505.) The evidence of injury to private property was more complete and satisfactory.
Two questions are presented, therefore, for our determination: First, is there express statutory authority for the maintenance of this action; second, if not, may a municipal corporation, in the absence of such authority, maintain an action to restrain and enjoin a public nuisance, which also affects the private property of a considerable number of its citizens.
There is no express statutory authority conferred upon the plaintiff to maintain this action. We do not now consider its power in reference to nuisances affecting the public health, since the nuisance complained of is not of such a character. By plaintiff’s, charter its common council is authorized to determine public nuisances and to prevent, restrain, remove and abate the same. (Laws of 1895, chap. 635, tit. 6, § 6, subd. 35.) By the same subdivision it is also provided that' in addition to its remedies by actions at law or in equity to enforce these powers, the common council shall have power to cause any public nuisance to be abated by any officer it may direct. This language is wholly consistent with a reference to the power which a municipal corporation has to proceed against public nuisances which inflict special injury upon corporate property held by it absolutely or in trust for the public, and the purpose of it manifestly was to designate the particular corporate officers through whose direction such power should be exercised. If the Legislature had' intended to create the municipality its agent to exercise a power for the benefit of the public generally, and to enforce a right which belonged to it alone, it would have used far more specific and precise language. In Village of New Rochelle v. Lang (75 Hun, 608) it was held by this department that an act which gave the trustees of the village authority to “ prohibit, restrain and prevent ” certain acts, gave .them no standing in equity to maintain an action not otherwise maintainable by it. The language of the secondary clause
A nuisance which is exclusively common or public cannot: lawfully be abated at the suit in equity of any private individual or corporation. The .remedy is by indictment or criminal prosecution or, under some circumstances, by an action in equity on belialf of the sovereign power, either through the Attorney-General or some other agent to whom the sovereign power has been delegated. (Wood Nuis. [3d ed.] 975, note; Joyce Nuis. § 437; Crowder v. Tinkler, 19 Ves. Jr. 617; Lawton v. Steele, 119 N. Y. 226 ; Griffith v. McCullum, 46 Barb. 561; Village of New Rochelle v. Lang, 75 Hun, 608; Village of Hempstead v. Ball Electric Co., 9 App. Div. 48.). In Crowder v. Tinkler (supra) Lord Eldon said: “ Upon the question of jurisdiction, if the subject was represented ás a mere public nuisance, I could not interfere in this case as the Attorney-General is not a party ”. In Lawton v. Steele (supra) Judge Andrews said: “The best considered authorities in i this country and England now hold that a public nuisance can only be abated by an individual where it obstructs his private right Or inter
The learned counsel for the respondent relies particularly upon two cases decided by the Court of Appeals, which lie claims sustain the right to maintain an action of this nature. ( Village of Oxford v. Willoughby, 181 N. Y. 155; Village of Haverstraw v. Eckerson, 192 id. 54.) Each of these, cases related to nuisances, affecting public streets. Each of them was decided upon the ground that express or implied statutory authority was givén for the main-. tenance of the action.' In the former case it was held that through
The judgment appealed from must be reversed and a new trial granted, costs to abide the event. - ;
■Woodward, Thomas and Rich, JJ., concurred; Hibsghbeeg, P. J., dissented.
Judgment reversed and new trial granted, costs to abide the event. ■