19 N.Y.S. 603 | N.Y. Sup. Ct. | 1892
The plaintiff is the owner of three private dwelling houses situated on the southerly side of West Hinety-Eighth street, and immediately adjoining one of these houses, on the east thereof, is the Croton water high-service pumping station, used in connection with the supply and distribution of Croton water at greater heights than can be obtained by the ordinary pressure of said water. The complaint alleges that the maintenance of said pumping station by the defendant adjacent and so near to the premises of the plaintiff, and the constant operation of the pumps and machinery, produce a continual jarring of the plaintiff’s houses, to their peril and injury, and also a great and incessant noise, all of which seriously damages the plain
Chapter 386 of the Laws of 1878 empowered the commissioner of public works when authorized by a three-fourths vote of all the members elected to the common council of the city, etc., to expend certain sums of money in laying pipes to extend and enlarge the distribution of Croton water throughout the city, etc., and in laying mains and erecting or constructing such structures and fixtures as the commissioner might deem necessary to deliver said water at higher levels. The commissioner of public works having requested authority to erect a suitable building with two pumping engines and fixtures, including a tank, etc., on the lots between Ninety-Seventh and Ninety-Eighth streets, formerly occupied by the aqueduct, on the 3d of December, 1878, the board of aldermen passed a resolution authorizing such construction, which resolution was duly approved by the mayor, and thereupon such pumpingsta•tion was built, with the results which have been above described. The question presented is whether the legislature expressly authorized the doing of the very thing which resulted in the injury. It is claimed upon the part of the respondent that the case of Atwater v. Trustees, 124 N. Y. 602, 27 N. E. Rep. 385, is an authority in support of this proposition.. But it seems to us that an examination of that case shows that it is not applicable to the one at bar. In that case, by virtue of certain powers, the trustees of the village, as commissioners of highways, were authorized to construct the identical and