1 N.Y.S. 801 | N.Y. Sup. Ct. | 1888
The complaint charges the defendants with maintaining a nuisance. This action is to restrain the defendants from continuing the same. The city of Buffalo authorizes its officers to collect, in large quantities, refuse matter, street sweepings, and other foul material, which is habitually and almost daily deposited or dumped into the current of Niagara river; thereby, as the plaintiff alleges, polluting and rendering unfit for domestic use the waters of the said river at several places above the falls. The plaintiffs, as the board of water commissioners for the village of Suspension Bridge, have the charge and management of the water system for that village, and draw the supply from Niagara river at a point above the falls, in the county of Niagara. The complaint also alleges that the impure and foul matter and substances, so deposited by the defendants, are carried by the current of the river down to the place where such water supply is drawn from the said river by ■ the plaintiffs, rendering the same foul and unhealthy, and unfit for domestic use. For the purposes of this appeal it must be conceded that the place of dumping the said material into the river is in the county of Erie. Both of the defendants claim that the proper place of trial of this action is in the county of Erie, under the provisions of sections 982,- 983, Code Civil Proc.
If either defendant may demand, as matter of right, that the trial should take place in Erie county, then the motion should have been granted; for the, plaintiff cannot defeat this right, as to one of the defendants, by joining with him another party who cannot also insist that the trial should take place in another county. People v. Kingsley, 8 Hun, 233. By section 982 it is provided that an action for a nuisance must be tried in the county in which the subject of the action, or some part thereof, is situated. The question is, is the subject of this action situated in the county of Erie, where the foul substances are deposited in the river, or in the county of' Niagara, where the water polluted by the said substance is taken from the stream for the use of the inhabitants of the village of Suspension Bridge? “The subject of an action,” as that phrase is used in this section, is that which is to be directly affected, in case the relief demanded by the plaintiff is granted; as, in an action of ejectment, the land described in the complaint, or, in an action for a nuisance, the object or structure mentioned and alleged to have been unlawfully constructed or erected, or the action, practice, or doings of the defendant, which are charged to be illegal, and are stated in the complaint as the foundation for the relief demanded. In most instances the subject of a nuisance has a situs, and is in some way or manner connected with or attached to the realty, and is capable of a local description, so that the precept which may be issued by the court to carry its judgment into effect may designate the object or structure which is to be abated by the officer to whom the precept is directed. By the common law an action for a nuisance is regarded as local in its nature, and the venue is required to be laid in the county where the nuisance was situated. Navigation Co. v. Douglas, 2 East, 502; Warren v. Webb, 1 Taunt. 379; Railroad Co. v. Orcutt, 16 Gray, 116; Queen v. Cotton, 102 E. C. L. 202. Before the Code, this rule prevailed in this state. If the defendants were to be prosecuted criminally for their unlawful action, as charged in the complaint, the indictment would have to be found and tried in the county of Erie, where the acts charged to be unlawful were committed. A right of action, in the nature of the common-law writ for a nuisance is preserved by section 660, Code Civil Proc. See, also, 2 Rev. St. (3d Ed.) p. 427, § 1. The judgment, in such an action, may be for damages, or for the removal of the
Haight, J., concurs. Bradley, J., concurs in the result on the last point .stated. Dwight, J„ dissents.