Olmsted v. Rich
6 N.Y.S. 826
N.Y. Sup. Ct.
1889
Check Treatment
Merwin, J.

It is claimed by the defendants that their right of trial by jury has been infringed upon, upon the theory that this is an action for a nuisance within section 968 of the Code, and that therefore the defendants had a right to a trial by jury as matter of right. The court of appeals are against this theory. In Cogswell v. Railroad Co., 105 N. Y. 319, 11 N. E. Rep. 518, it was very distinctly stated that an action like the present one was not within section 968. And, although the facts of that case did not apply the rule to the case of a defendant, still the rule was broadly enunciated, and should be followed by this court. It is to be observed that at the trial the main issues were in fact submitted to the jury, and that no request was made to have any other specific question submitted. The defendants did ask that the case be submitted to the jury as an action at law for trespass, and that the jury be directed to render a general verdict, and that all the questions of fact be submitted to the jury for a general verdict. These requests, in their general form, were properly overruled.

Aside from the questions of fact submitted, there was but one other in regard to which there was much dispute, and that was whether the defendant Robert S. Rich aided and abetted the other defendant in the keeping of the bees. As to this the defendant Robert admittted that he assisted his son, the other defendant, to a certain extent, and that just prior to the commencement of the suit he claimed to own the premises. Ho costs or damages were awarded against him. We think there was no error in the form of the trial, unless the special term order of September 6th amounted to an adjudication that gave the defendants more rights than they received. That order did not assume to state that all the issues, or what ones, should be submitted to a jury. We must rather assume that, being sent to the circuit, it was left to the court there to try the case as it should then seem legal and proper. Very likely the decision in the Cogswell Case had not been published at the time the special term order was made, but was prior to the circuit. We think there was nothing in the special term order that made the course followed at the circuit irregular or improper.

It is further claimed by the defendants that this action is not maintainable, inasmuch as the owner of the fee of the land upon which the nuisance is maintained is not a party defendant. That would probably be so were this a law action, brought under the provisions of the Revised Statutes continued by section 1660 of the Code. Brown v. Woodworth, 5 Barb. 550; Hutchins v. Smith, 63 Barb. 251. But this being, according to the Cogswell Case, an equity action, the rules applicable to parties in equity actions are to be applied. The case related to articles of personal property in which the owner of the fee had no interest. Her presence was not necessary to a complete determination of the controversy. Code, § 452. The defect, if it was one, appeared on the face of the complaint. No demurrer was taken, nor is any defense of defect of parties set up in the answer. There was, therefore, a waiver, so far as the defendants were concerned. Id. § 499. Although Mrs. *830Rich, the owner of the fee, might have been properly made a party defendant, the failure to do so is not, as the case stands, a defense.

Upon the merits the main questions are whether the verdict of the jury that the bees as then kept were a nuisance is sustainable, and whether the injunction was proper. Assuming the first question is reviewable here, about which there maybe some doubt, (Chapin v. Thompson, 23 Hun, 12, 89 N. Y. 270,) it was peculiarly a matter for the jury. The evidence was somewhat conflicting, and diverse inferences were sought to be drawn. The matter upon either side was fully presented. The identity of the bees was a matter for the jury. The issue was not as to the motives of defendants, (Wood, Nuis. § 572; Mahan v. Brown, 13 Wend. 261; Pickard v. Collins, 23 Barb. 444,) nor whether they had knowledge of any vicious propensities of the bees; but whether, under the conditions of things as then and before existing, there was a nuisance. Ho fault is found with the law applicable to such cases as charged by the court. We And no good reason for disturbing the verdict on the facts.

Was it a proper case for an injunction? An injunction does not necessarily follow, but there must be such an injury as from its nature is not susceptible of being adequately compensated by damages at law, or such as from its continuance or permanent mischief must occasion a constantly recurring grievance, which cannot be otherwise prevented but by an injunction. 2 Story, Eq. Jur. § 925; Davis v. Lambertson, 56 Barb. 480. In 1 High, Inj. (2d Ed.) § 772, it is said the law may be regarded as settled that when a business, although lawful in itself, becomes obnoxious to neighboring dwellings, and renders their enjoyment uncomfortable, whether by smoke, cinders, noise, offensive odors, noxious gases, or otherwise, the carrying on of such a business is a nuisance which equity will restrain. See Heeg v. Licht, 80 N. Y. 582; Campbell v. Seaman, 63 N. Y. 568; Hutchins v. Smith, 63 Barb. 256. In the Campbell Case it is said to be immaterial that the injury is only occasional or to articles of luxury. Ho case is cited exactly like the present. A large quantity of bees were kept upon a small village lot next to plaintiff’s lot and dwelling. At certain seasons the plaintiff in the use of his lot and dwelling was, according to the evidence on the part of the plaintiff, very seriously discommoded, and the comfortable enjoyment of the property greatly impaired. It was apparently a case calling for some permanent relief, and very different from the cases of trespass cited by defendants. But it is said that the damages of the plaintiff, as indicated by the verdict, are trifling, and that a lawful and useful business is interfered with. The struggle was not over the amount of damages; in fact the jury were told by the court that they would probably be satisfied with rendering a verdict for a very small amount. The real contest was as to whether the condition of things as then existing constituted a nuisance. The jury and the court both so found. Apparently the bees can be removed, without material injury, to a locality where neighbors will not be affected, and the defendant Stephen W. Rich is in fact carrying on a similar business elsewhere upon farms. Having in view the peculiar situation, and the inadequacy of any other remedy, we are inclined to the opinion that an injunction was properly awarded. Ho fault is found with the form of it, except that it is against the defendant Robert S. Rich as well as the other defendant. Still, upon the evidence, the court was authorized to find, as it did find, that the defendant Robert assisted, aided, and abetted the other defendant in maintaining and keeping the bees, and, if so, it was proper to include him in the injunction. Wood, Huis. § 787. The question of costs was in the discretion of the court. Some further questions are raised in relation to rulings upon the reception or rejection of evidence. We have examined all about which any point is made, and find nothing that requires any special consideration, or presents any substantial ground of error. The judgment should be affirmed, with costs. All concur.