76 N.Y.S. 161 | N.Y. Sup. Ct. | 1902
The plaintiffs, for themselves, and as assignees of other lessees, seek to recover damages for a nuisance formerly maintained by the defendant upon the westerly half of Pier 12, East river. The defendant is the possessor of the right to collect wharfage from the westerly half of this pier, together with the right in common with other owners, of the use of the surface of the pier. Plaintiffs’ lessors were the possessors of similar rights on the easterly side of Pier 12. They were also, in the same sense, the owners of Pier 13 and of the bulkhead between the two piers, and leased their interest in all of these premises to plaintiffs for a term of five years, commencing January 1, 1891. Mine years prior to that date defendant had erected upon its half of Pier 12 a dumping-board for the use of the street cleaning department in disposing of garbage and other refuse by loading same upon scows for transportation to sea. A suit for injunctive relief, claiming that the dump constituted a nuisance, was brought by one of plaintiffs’ lessors (William Hill) in November, 1889, and that action was about being reached upon the day calendar of this court for trial at the time of the execution of plaintiffs’ lease, but for some reason the trial was adjourned until the June following, when the complaint was dismissed by the Special Term. This dismissal was affirmed at General Term, but in October, 1893, the Court of Appeals reversed this judgment. Hill v. Mayor, 139 N. Y. 495. After the decision of the Court of Appeals plaintiffs’ lessors, in January, 1894, brought an action against the defendant for dam
Judgment accordingly.