Finkelstein v. Huner , 79 N.Y.S. 334 ( 1902 )

Patterson, J.:

The plaintiff is the owner of premises No. 43 Jefferson street in the borough of Manhattan, city of Hew York'. The defendant, as she states in her answer, is, as executor of and trustee under the will of Frederick Huner, deceased, the legal owner and in possession of the building and premises known as Ho. 41 Jefferson street and adjoining the plaintiff’s property. The plaintiff claimed and proved at the trial that the defendant maintained on her premises contiguous to the rear of the northerly wall of the plaintiff’s house a water closet, the cesspool of which was broken, rotten and leaky; that by reason of the improper and defective condition of the cesspool, large quantities of water leaked, and at the time the action was brought continued to leak, through the wall of the plaintiff’s building and into the basement thereof and made the wall “ weak, rotten, unsafe and dangerous,” so that it had to be taken down and another brick wall built, replastered and painted; that the floor of the basement of plaintiff’s building had been considerably damaged, and that by reason thereof such basement became unfit for business purposes, depreciated in rental value and was for a long time vacant, and plaintiff lost and will lose considerable rent; and that foul smells have been and are emitted from the water closet, to the great annoyance and discomfort of the plaintiff and his tenants who reside in the building aforesaid. The action was brought for an injunction to restrain the defendant from maintaining in its imperfect condition the cesspool upon her premises, and for damages for the injuries sustained by the plaintiff. The answer contains the admission of the defendant of the ownership above mentioned, denies upon information and belief plaintiff’s ownership of his premises, and also denies all the allegations in the complaint respecting the alleged maintenance of the imperfect cesspool and privy upon her property, and alleges that the plaintiff has an adequate remedy at law.

On the trial the evidence adduced was sufficient to authorize the court to make the decision that was made—in substance, that the allegations of the complaint were true; that the defendant did maintain upon her property the privy and cesspool in such a defective condition that the water from the cesspool leaked through the plaintiff’s wall and injured it and flowed into his premises, with the consequences alleged in the complaint. In addition to those findings, the court upon evidence ascertained and fixed the amount of the damage which the plaintiff sustained by reason of the wrongful and negligent maintenance by the defendant of the privy and cesspool in its defective condition. Upon the decision of the court, a final judgment was entered restraining the defendant from continuing to maintain the appurtenance to her property mentioned in its defective condition, and awarding the plaintiff a small sum of money for his damages.

The action, both for an injunction and the recovery of damages, is supported by what was held in Davis v. Niagara Falls Tower Co. (171 N. Y. 336). The right to the recovery of damages based upon the negligence of the defendant in maintaining the privy and cesspool in its improper condition so that damage occurred to the plaintiff, is supported by Holland House Co. v. Baird (169 N. Y. 136); Jutte v. Hughes (67 id. 267); Davis v. Niagara Falls Tower Co. (supra). The existence of the defective appurtenance to the defendant’s premises, under the circumstances disclosed in this record, amounted to a private nuisance. It was not necessary to prove a request to the defendant to abate it. (Conhocton Stone Road v. B., N. Y. & E. R. R. Co., 51 N. Y. 573.) The point of the defendant’s having knowledge or notice of. the existence of this nuisance before action brought is not involved in this case, for there is no evidence to show that the water closet and cesspool were a nuisance before the defendant became the owner of the premises. Notice is only necessary when the nuisance itself existed before the person sought to be charged with its continuance became the owner of the premises. (Conhocton Stone Road v. B., N. Y. & E. R. R. Co., supra.)

The judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., and McLaughlin, J., concurred; O’Brien and Laughlin, JJ., dissented.