12 N.Y.S. 603 | N.Y. Sup. Ct. | 1891
The action was to recover for damages alleged to have resulted to the plaintiff from a nuisance maintained by the defendant. The complaint alleges “that for about fourteen years last past this plaintiff has resided with his family, consisting of his wife and five children, in a house and lot owned by plaintiff’s wife on the northerly side of Fourth street, in the city of Buffalo;” that about six years ago the defendant erected on the same street and opposite the plaintiff’s house, and has since maintained, an establishment for the manufacture of paving and roofing material, where he heats and boils asphaltum and other substances which emit offensive and unwholesome gases and stenches which render the air in the locality of the plaintiff’s dwelling foul and unwholesome; that by reason thereof plaintiff and his family have been put to inconvenience, discomfort, sickness, and damage; have been obliged to keep the doors and windows of their dwelling closed day and night even in hot weather; that their food has been inpregnated by such gases so as to be disagreeable to the taste, and unwholesome; that fine sand and soot and other matter engendered in the defendant’s factory have been blown into the plaintiff’s dwelling to such an extent that plaintiff and his family have been deprived of the use of the front room; that plaintiff and his family have been deprived thereby of the-ordinary and comfortable use and enjoyment of said dwelling and premises; that the plaintiff’s wife and family have been made sick by said smells, sand, and stenches, and one of plaintiff’s daughters died from sickness caused or aggravated thereby; that the plaintiff has been deprived of the services of his wife and children by reason thereof, and has been compelled to pay for medical attendance on account of such sickness; and that, bv reason of the matters aforesaid, the plaintiff has sustained loss and damage in the sum of $10,000. The answer admits the erection and maintenance by the defendant of the establishment and apparatus for the manufacture of paving and roofing material from asphaltum and other substances, and that he therein heats and boils asphaltum and other substances, but denies that he has done or does so in violation of any rights of the plaintiff, and denies the evil effects and results therefrom alleged in the complaint. The principal contention of the defendant on this appeal is that the plaintiff could not maintain the action because he was not the owner of the house and lot where the injury complained of was received. It is true that the plaintiff cannot recover for any injury to or depreciation in the value of the premises, the title to which not only, but the possession also, is in the wife. Though the head of the family, he is not “in any legal sense the possessor or occupant of the house or land in or upon which the family reside.” Martin v. Rector, .101 N. Y. 77, 4 N. E. Rep. 183. But it is a