Meeker v. Van Rensselaer

15 Wend. 397 | N.Y. Sup. Ct. | 1836

By the Court,

Savage, C. J.

It was not denied upon the trial that the building torn down was a common nuisance, nor was it upon the argument. It may not be improper, however, to refer to the casias collected in Bacon’s Abr. tit. Nuisance, to see what has been adjudged a nuisance. It may be proper to remark that a nuisance is an annoyance ; any thing that worketh hurt, inconvenience or damage. Jacob’s Law Diet. It is a common nuisance indictable to divide a house in a town for poor people to inhabit in, by reason whereof it will be more dangerous in the time of sickness and infection of the plague.' 2 Rolle’s Abr. 139. So manufactures, lawful in themselves, may become nuisances, if erected in parts of towns where they cannot but greatly incommode the inhabitants and destroy their health. Whether the houses of the plaintiff were of that description, was fairly left to the jury by the judge in his charge. A more offensive nuisance cannot be imagined than the buildings described by the witnesses in this case.

The first exception taken on the trial was, that the witness should not have been asked whether the inhabitants were not requested to leave the buildings before they were pulled down. The object of the inquiry no doubt was, to show that the conduct of the defendant was not wanton, but that he was influenced by considerations of the public good, and not of private injury to the plaintiff. The question was proper and unexceptionable.

It was objected that parol evidence should not have been received of the orders of the board of health. This objection was well taken. The board of health is a tribunal created by statute, clothed with large discretionary powers; and being a public body, its acts should be proved by the highest and best evidence which the nature of the case admits of. Every proceeding of a judicial character must be in writing. It is not to be presumed that minutes of their proceedings are not kept by such a body, and that determinations which seriously affect the property of individuals, were not reduced to writing, but rest in parol. In the case of Wormer v. The City of Albany, ante 262, the minutes of the proceedings of the board were incorporated with the proceedings of the corporation, of which the board of health were members, and were proved by a witness a member of both boards. Here the proof was defective ; but in my judgment it is not material, because the defendant did not need any authority from the board of health. As a citizen of the 5th ward, who desired to preserve the public health, and especially as an alderman, he was fully justified in every act done by him.

It was also objected that proof should have been received of other modes of abating nuisances, than by pulling down houses. Such proof would have been wholly irrelevant. The proof in this case, from the plaintiff’s own witness, was, that there was no other way to correct the evil but by pulling down the building. Had it been proved that in the case of other nuisances draining or filling up had been resorted to, such proof would not have contradicted the testimony in this cause. In my opinion a new trial should be refused.

New trial denied.