Cropsey v. Murphy

| New York Court of Common Pleas | May 15, 1856

Beady, J.

This was an action brought to recover damages for an alleged nuisance, created by boiling fat, and the justice rendered judgment for the plaintiff, assessing his damages at $250. But one exception was taken on the trial, and that to the decision of the justice denying a nonsuit. The motion for a nonsuit was founded on two reasons:

First, No cause of action shown ; and,

Second, No special damages proven.

Nuisances are of two kinds — public, or common nuisances, and private nuisances. Private nuisance may be defined to be anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. 8 Bl. Comm. 215. Nuisances to one’s dwelling house are, all acts done by another which render the enjoyment of life within the house uncomfortable, whether it be by infecting the air with noisome smells, or with gases injurious to health. 2 Greenleaf’s Evidence, page 467, citing several authorities. In proof of damages, it is sufficient for the plaintiff to show that, by reason of the injurious act or omission of the defendant, he cannot enjoy his right in as full and ample a manner as before, or that his property is substantially impaired in value. Where the damages are consequential, or affect relative rights, some damage must be proved. 2 Greenleaf, supra, pp. 478 and 472, and cases cited. The proof in the court below was abundantly sufficient to establish the requirements of the law, and the cause of action was proved. The special damage which the defendant insisted should be shown, was shown by John Van Wagoner, the first witness examined, and the justice would have erred to have granted a nonsuit.

This is the only question presented on the return, the finding of the court being upon questions of fact merely. The damages seem to be excessive, but the judgment will not be disturbed for that reason. Pierce v. Dart (7 Cowen, 609) was a certiorari from a justice’s court, where the plaintiff sued for damages occasioned by defendant’s building a fence across a public highway, near Hie residence of the plaintiff. He complained that he had received special damage.

The court, in conclusion, say, that the plaintiff was certainly put to some expense. True, the injury was trivial, and it is not difficult to see that the damages are excessive. But we cannot interfere on that ground, where the action below is for a tort.

Judgment affirmed.