#### Joshua P. Demby, Resp’t, *v.*The City of Kingston, App’lt.

*(Supreme Court, General Term, Third Department,*

*Filed May 21, 1891.)*

1. Nuisance—Damages.

The plaintiff owned two lots of land in a city, separated by a railroad track. A stream ran through one lot; into this the contents of sewers, maintained by the city, ran and caused a nuisance as to both lots. One of the lots was owned by the plaintiff and his wife as tenants by the entirety. The stream ran through this lot. The plaintiff covered it. Before this action was brought he and his wife sold this lot. In an action by him for a nuisance, *Held,*that he undoubtedly could recover the expense of covering the stream, since by this act the premises were only restored to their condition before the nuisance.

2. Same—Injunction.

It is no objection to the granting of an- injunction in favor of one lot that it will beneficially affect another lot which plaintiff and his wife sold.

3. Same—Notice to city.

The sewers were built in 1879, and in 1883 water was introduced into the city, and with its knowledge, but without formal permission, private owners connected with the sewer. It was shown that aldermen had inspected the nuisance, and that the street superintendent testified it had become such in 1885. *Held,*that there was sufficient notice to the city, and that it was liable.

Appeal from a judgment awarding damages and an injunction, entered upon the decision of the court upon a trial of some of the issues by a jury, at the Ulster circuit, and upon the approval thereof by the court and further findings.

The complaint alleged the ownership in the plaintiff of two separate houses and lots in Kingston; that the defendant maintained a sewer which discharged offensive matter into a small stream running through one of the lots and near the other, creating and maintaining a nuisance which had damaged both lots, by fouling the air of both houses and lots and depositing offensive matter upon one of the lots, to the depreciation of their actual and rental value.

*G. D. B. Hasbrouck,*for app’lt; *F. A. Westbrook,*for resp’t.

Landon, J.

The existence of the nuisance and its injurious effects were established. The plaintiff was permitted to recover damages with respect to two parcels of property, one of which *43was, when the action was commenced, owned by himself and wife as tenants of the entirety, but which before trial they sold without any reservation. While owning this parcel the plaintiff covered the small open stream which ran through it, into which stream the offensive matter creating the nuisance was discharged from the mouth of the sewer, about thirty-six feet distant. He covered the stream to lessen in part the offensive smells and gases which, arising from it, pervaded his premises. The learned trial judge allowed him to recover for the expense of covering this stream, but denied recovery of any other damages with respect to this lot.

The husband was entitled to the use of the premises during the life of both parties, *Bertles*v. *Nunan,*92 N. Y., 152; *Lord*v. Lord, 33 N. Y. State Rep., 753, and therefore it was not necessary to make his wife a party; the damages he was permitted to recover he sustained.

The court submitted the question to the determination of the jury whether the plaintiff necessarily incurred this expense in remedying the nuisance, and the court approved the findings of the jury. The fact, then, is that the expense was not voluntarily or unnecessarily incurred, nor was it an expenditure indirectly caused, but was in fact directly compelled by the nuisance and its proximate result and therefore recoverable. Pending the action the plaintiff and his wife sold the premises, and therefore, it is urged, parted with the right to damages. By the nuisance the premises were injured in value presumably to the extent of the expense which the plaintiff incurred. By the expense the premises were restored to their former condition, and thus by their sale the grantors only received their value undamaged, not that value plus the expense to restore them to it. Just as if defendant had destroyed the house and plaintiff had rebuilt and then sold the premises; he would not sell two houses and should recover for the one lost.

The appellant urges that the plaintiff could have no injunction to abate the nuisance with respect to the parcel which he had sold. That is so, but the nuisance affects the parcel which he retains, and it is no objection to his injunction that it will beneficially affect the lot he sold and all the other lots in the neighborhood.

The sewer in question was a storm water sewer, constructed in 1879. In 1883 water was brought into the city and thereafter private owners connected their closet and waste pipes with this sewer. Ho formal leave of the city was obtained and it does not appear that any was necessary. The court refused to hold upon defendant’s request that the plaintiff was not entitled to recover for injuries prior to the knowledge by the city of the condition causing the injuries. The action was commenced in December, 1887, and the recovery seems to be for damages from the beginning of the nuisance. Complaints were made to the common council in 1885, and in August, 1886, a formal resolution respecting the matter was adopted. It was shown that different aider-men inspected the place of the offensive discharge from time to *44time, and one of them in 1883 connected his closet pipe with the sewer. The superintendent of streets testified to its having become offensive in 1885. We think it may be presumed in support of the verdict that the city upon the introduction of water consented to the connection by private parties of their waste pipes with the sewer. The city therefore cannot be allowed to take the position that the wrong of private parties done without its knowledge or consent and against its rules created the nuisance, and that it is exempt from liability until it obtains actual or constructive notice.

The defendant urges that the injunction is improper, because it cannot in order to abate the nuisance lawfully enter upon the premises of parties who discharge offensive matter into the sewer. Its powers for the protection of health and its own property are probably ample to enable it to sever any improper connection with the sewer, if it really should desire to do so to promote the public welfare. However this may be, the defendant can abate the nuisance by extending the sewer along the open stream or by embracing it within it. We do not regard this objection ae a substantial one. The city must be destitute of the' usual municipal powers if it can neither protect its sewers nor extend them where extension is proper.

The judgment should be affirmed, with costs.

Learned, P. J., and Myham, J., concur.