70 N.Y.S. 1130 | N.Y. App. Div. | 1901
The plaintiff, the Roscoe Lumber Company, has a lumber yard in the borough of Queens which it has occupied since December, 1894;
The rule is well settled that if one carry on a lawful trade or business in such a manner as to prove -a nuisance to his neighbor, he must answer in damages, and it is not necessary to a right of action that the owner shall be driven from his dwelling; it is enough that the enjoyment of life and property be rendered' uncom fortable (Bohan v. P. J. G. L. Co., 122 N. Y. 18, 23), but it, is equally true that nuisance is always a question of fact, to be determined upon the evidence. (Rosenheimer v. Standard Gas Light Co., 36 App. Div. 1, 5.) The evidence in this’ case shows that the incidental projection of dtist from the defendant’s factory, in a manufacturing district, was not a nuisance; that it did not work the injury to the plaintiff’s property which was alleged in the complaint, and which the latter was bound to establish in order that' it might
We find no error in the court refusing to receive in evidence the so-called bill of particulars. It appears that the defendant ‘asked for a bill of particulars; that the paper under consideration was served as such bill of particulars, a,nd that it was not satisfactory to the defendant. Upon the trial defendant’s counsel, in cross-examining the plaintiff’s president, who had verified the complaint and the bill of particulars, asked if the facts stated in the bill of particulars were true, and some other questions along the same line. Subsequently plaintiff’s counsel offered the bill of particulars in evidence, contending that as the bill had been referred to in the cross-examination, it was proper that it should appear in the record. The offer óf the bill of particulars was rejected by the court, and plaintiff took an exception, bringing the question here for review. A bill of particulars is an amplification or more particular specification of the matter set forth in the pleading (3 Ency. of'PI. & Pr. 518, and authorities cited), and is designed to restrict the proofs and limit the recovery or set-off to the matters which have been put in issue by the pleadings. When the bill is furnished it is deemed a part of the declaration, plea or notice to which it relates, and is construed in the same way as though it had originally been incorporated in it. The particulars cannot be evidence against the party furnishing them, in any case, or for any purpose, where the pleading or notice to which the bill relates would not be evidence (Starkweather v. Kittle, 17 Wend. 20, 22; 3 Ency. of Pl. & Pr. 542), and as their force as evidence is governed by the rules applicable to admissions generally (Gill. Ind. & Col. Ev. § 3 ; 1 Greenl. Ev. §§ 212, 551; Cook v. Barr, 44 N. Y. 156, 158; Code Civ. Proc. 522), it is obvious that the facts stated in a bill of particulars cannot be admitted as evidence against the defendant, for they are not the defendant’s admissions. Section 522 of the Code of Civil Procedure provides that “ Each material allegation of the complaint, not controverted by the answer, and each material allegation of new matter in the answer, not controverted by the reply, where, a reply is required, must, for the purposes of the action, be taken as true,” and to this extent, no doubt,
The plaintiff having failed to show ground for the interposition of a court of equity, the judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.