#### Abraham Van Siclen and James Van Siclen, Plaintiffs, *v.*The City of New York, Defendant.

(Supreme Court, Queens Special Term,

August, 1900.)

Municipal corporation — Public nuisance specially damaging individuals — Measure of damages.

A municipal corporation, which totally obstructs a street by digging a deep and long trench in it in order to repair a sewer, and which allows the trench to remain open for two years thereafter, is guilty of maintaining a public nuisance, and abutting owners, who have sufferred special damage by it, are entitled to have it abated and recover damages of the corporation.

The measure of damages is the depreciation of rental value which has resulted from the nuisance.

Action for an injunction, restraining the defendant from further continuing an obstruction to a highway, alleged to constitute a nuisance.

*404Frank Harvey Field, for plaintiffs.

John Whalen, Corporation Counsel, for defendant.

Garretson, J.

The plaintiffs are the owners of improved lands situated upon opposite sides of a highway called Lincoln avenue, in the Fourth ward of the borough of Queens (formerly the town of Jamaica), upon which they respectively reside and carry on the business of market gardening. Prior to the year 1898, and before the town became a part of the present city, by the act of the Legislature, known as “The Greater New York Charter,” the village of Jamaica had constructed a trunk sewer, as an outlet from a village sewer system, in Lincoln avenue past the plaintiffs’ properties towards Jamaica Bay. It appears that this trunk sewer was faulty in construction and that, in the year 1898, certain officials of the defendant city caused it to' be exposed for the purpose of repair, by digging a deep trench for a distance of upwards of 500 feet in front of the plaintiffs’ lands and have ever since permitted the trench and the excavated earth lying along the side of it to remain in Lincoln avenue, wholly obstructing its use for travel with conveyances.

The plaintiffs have brought this action to restrain the city from further continuing this obstruction to the highway, upon the ground that it is a nuisance, public in its nature, but specially injurious to them; and to recover, the damages which have resulted to their property rights by reason thereof. The action is dual in its nature, possessing both equitable and common-law elements, but the defendant has answered upon the merits and has voluntarily submitted the issues which are presented to the consideration and determination of the court sitting in equity at Special Term.

The defendant has also failed to demur to the complaint upon the grounds that there is a misjoinder of parties plaintiff, or that the plaintiffs’ several causes of action are improperly united and, therefore, cannot, upon submission after trial, be permitted for the first time to urge either of these objections.

Since January 1, 1898, the defendant has had the entire control of, and dominion over, the sewer system of the former village of Jamaica, having succeeded to the duties, burdens'and obligations of the village by virtue of the charter and must bear, and *405be held solely responsible for, such acts and omissions in respect thereto, 'as are justly chargeable to it by law. The obstruction of the highway in front of the plaintiffs’ lands amounts to a public nuisance by reason of which they have each sustained private and peculiar injury, and they are entitled to have the aid of the court to cause the nuisance to be abated and to recover the damages sustained by them. High Inj., § 768; Trustees v. Cowen, 4 Paige, 510; Wakeman v. Wilbur, 147 N. Y. 657.

That the maintenance of the obstruction is in violation of the plaintiffs’ rights was virtually conceded by the counsel for the defendant upon the trial, and no reason has been presented in opposition to their demand that an injunction shall issue for its abatement.

The plaintiffs are also entitled to an award for such damages as the evidence shows they have sustained. Mr. Wood, in his work on Nuisance (2d ed., 749), says: *“*When a municipal corporation in the prosecution of a public work creates a nuisance it is liable for all the injuries that result from a failure on its part to properly exercise the power possessed by it, and from injuries resulting from its wrongful acts.” The measure of damages is the depreciation of the rental value of the plaintiffs’ property, occasioned by the nuisance. It is no objection that the plaintiffs occupied the premises themselves. Sedg. Dam. (8th ed.), § 1203; Francis v. Schoellkopf, 35 N. Y. 152; Colrick v. Swinburne, 105 id. 503. The evidence in the case both permits and requires an assessment of the damages of each plaintiff in a substantial amount. In making such assessment I feel constrained to exclude any estimate for the alleged injury to the plaintiffs’ lands from escaping sewage, because of the lack of satisfactory proof that the sources of the water supply of the plaintiffs have been injured thereby. The injunctive relief must be limited accordingly for the same reason. Judgment is awarded in favor of the plaintiffs, that the defendant, its agents, etc., be perpetually restrained and enjoined from further maintaining the obstruction in Lincoln avenue in front of the lands of the plaintiffs, and damages are awarded against the defendant, in favor of the plaintiff Abraham Van Siclen, in the sum of $2,850, and in favor of the plaintiff James Van Siclen, in the sum of $500.

Judgment accordingly.