29 Barb. 391 | N.Y. Sup. Ct. | 1859
It is not always easy to determine, from the present pleadings, to what branch of the law the pleader intends to refer, for the redress of his client’s grievances. In the present case, however, there is no difficulty in determining that the facts stated in the complaint are not sufficient to show a cause of action entitling the plaintiff to the remedy given by the common law writ of nuisance, or an assize of nuisance. This writ at common law lay only in favor of one whose freehold was affected, and against one who erected the nuisance upon his freehold. Hence the parties to an assize of nuisance must be freeholders. (3 Black. Com. 222. Vin. Abr. tit. Nuisance. Brown v. Woodworth, 5 Barb. 550. Ellsworth v. Putnam, 16 Barb. 565.)
In the present case there is no allegation that the nuisance was erected by a tenant of the freehold. It is simply alleged that the defendant (meaning, I suppose, the Buffalo and Niagara Falls Rail Road Company) in the year 1852 erected, &c. a stone building across the alley; and then it is alleged that the Buffalo and Niagara Falls Rail Road Company transferred and conveyed the possession of the building to the other defendant, the New York Central Bail Boad Company.
The revised statutes preserved the common law remedy by writ of nuisance, as theretofore accustomed, subject to certain provisions in the statute. -At common law this writ only lay against him who erected the nuisance upon his freehold. It was, however, early provided by statute that the writ should lie against him and his alienee. And this provision is preserved in the revised statutes. The plaintiff is not to go without remedy, “because the land is transferred to anotherbut the party who erected the nuisance, and his transferee, are both to be named in the writ as defendants. (2 R. S. 332.)
The plaintiff, under the code, must now aver all the facts necessary to bring his case within the law entitling him to an abatement of the nuisance, and to damages. (16 Barb. 565.)
The most that can be claimed in the present case is, that the action is simply an action to recover damages for the
I am not speaking of a case where the complaint shows a good cause of action against one of two defendants, but no cause of action against the other.' In such a case the latter may demur; and this is the proper remedy for him. Some of the judges have, however, held that in such a case the defendants may demur j referring to the last clause of section 167, which provides that the causes of action united must affect all the parties to the action. All the causes for which a demurrer, may be interposed are specified in section 144. Section 167 specifies what causes of action may be united. It
Greene, Marvin and Davis, Justices.]
Whatever construction may be given to sections 144 and 167, the present case, I think, comes within the 5th subdivision of section 144; that is, that the cause of action against the Buffalo and Niagara Falls Bail Boad Company is improperly united with the cause of action against the New York Central Bail Boad Company.
I am also inclined to the opinion that the defendants could have moved that the plaintiff elect which of the causes of action he would prosecute. It requires much liberality to sustain this complaint at all. The pleader had no idea of the construction now given to his complaint, and which saves it from dismissal. He supposed he had stated a single cause of action, entitling him to damages and an abatement of the nuisance. He will be permitted to amend his complaint. In doing so, he will probably discontinue, as to one of the defendants, and proceed against the other, for his damages.
The order appealed from should be reversed, and the defendants should have judgment upon the demurrer, with leave to the plaintiff to amend, on the payment of costs.