#### LESTER v. MAYOR, ETC., OF CITY OF NEW YORK.

(Supreme Court, General Term, First Department.

July 13, 1894.)

Public Improvements—Annoyance to Adjoining Owners.

Where structures and machinery are placed temporarily on a lot owned' 'by the city, for the purpose of prosecuting a work of public improvement, the owner of an adjoining lot cannot recover for the annoyance caused thereby, unless the site selected for the work was an improper one, or the work was negligently performed.

*1001Appeal from circuit court, New York county.

Action by Asbury Lester against the mayor, aldermen, and com-of the city of New York. The complaint was dismissed,- and plaintiff appeals.

Affirmed.

Pursuant to chapter 490, Laws 1883 (the aqueduct act), the city of New York, by the aqueduct commissioners, on the 3d of February, 1886, entered into a written contract with John Brunton & Co. by which the latter agreed to construct section No. 14 of the new aqueduct extending from 135th street, at Convent avenue, to 162d street, at 10th avenue. The only provisions of the contract which are germane to this litigation are the third and fifth, which are as follows: “(3) Sufficient ground is to be furnished by the city at or near the shafts for the establishment of the working plant, but no material from the shafts or from the tunnel shall be dumped thereon. All excavated material is to be removed by the contractor, who must furnish the necessary dumping grounds for the same. The cost of such removal and of procuring such dumping ground is to be included in the price herein stipulated for shaft and tunnel excavation; and the contractor, at his own expense, must provide sufficient and proper drainage for all water discharged from the shafts and tunnel.” “(5) The contractor, whenever so ordered, shall erect and maintain fences along the streets, roadways, and around the grounds occupied by him. These fences must he of such a character as to be sufficient, in the opinion of the engineer, for the protection of the adjoining property.” At some time, the date not appearing, the city acquired, under chapter 490, Laws 1883, a lot 100 feet square, at the southeast corner of 10th avenue and 157th street, for the purpose of constructing the aqueduct. Since June 20, 1884, the plaintiff has owned and occupied a lot 25 feet wide and 100 feet deep on the south side of' 157th street, and adjoining on the east said lot owned by the city. In 1885 the plaintiff built on his lot a three-story frame building, in which he has since resided. In January, 1886, the contractors entered on the lot owned by the city, for the purpose of executing the contract, and erected blacksmith forges, sheds, steam engines, drills, and various kinds of machinery and structures for the purpose of sinking a shaft, Known as “No. 39,” to facilitate the construction of the aqueduct. During the years 1886, 1887, and part of 1888, this machinery was run day and night, Sundays included, causing loud and disagreeable noises, creating smoke, dust, and disagreeable odors, which greatly annoyed the plaintiff and his family, and reducing the rental value of his property, as is asserted, more than $1,000 per year. The plaintiff presented his claim to the comptroller, who refused to pay it, and July 12, 1892, this action was brought, which resulted in a nonsuit, on which a judgment was entered dismissing the complaint, with costs.

Argued before VAN BRUNT, P. J., and FOLLETT, and BARRETT, JJ.

James A. Deering, for appellant.

William H. Clark, for respondent.

FOLLETT, J.

It is not alleged in tbe complaint, nor was it proved on the trial, that the site selected for the work was an improper one; that the work was negligently performed; or that any of the structures or machinery were unnecessary. In short, there is no allegation or evidence that the aqueduct commissioners,, or any of the defendant’s agents, or the contractors or their servants, were negligent. Nor is there any allegation or evidence that trespasses were committed on the plaintiff’s premises. Before this-action was begun, the work complained of had been completed,, the structures removed, and the lot owned by the city had been sold, but to what uses it has since been put does not appear. The-undisputed evidence shows that the structures- and work complained. *1002. of were temporary, and necessary for the construction of the aqueduct authorized by chapter 490, Laws 1883. Temporary annoyances are almost invariably caused to the owners of lots adjoining one on which new buildings are being erected or extensive improvements made; and in case no trespass is committed, and the work is prosecuted with care and diligence, the owners of adjoining lots, suffering temporary inconveniences, have no legal cause for complaint for consequential injuries caused by the prosecution of the work necessary to erect the buildings or to complete the improvements. Such temporary use of property is legitimate, and affords no ground for damages to an abutting owner who sustains consequential damages by temporary annoyances, not negligently caused and not amounting to trespasses. Any other rule would render the improvement of property in cities unduly expensive and well-nigh impossible. This case does not fall within the principle declared in Morton v. City of New York, 65 Hun, 32, 19 N. Y. Supp. 603, affirmed 140 N. Y. 207, 35 N. E. 490, but within the class of cases of which Radcliff v. Mayor, 4 N. Y. 195, Bellinger v. Railroad Co., 23 N. Y. 42, and Atwater v. Trustees, 124 N. Y. 602, 27 N. E. 385, are types. See, also, 2 Dill. Mun. Corp. (4th Ed.) 967 et seq. In Morton’s Case a permanent structure was erected, which was held to be a nuisance, causing permanent injuries to the plaintiff’s property. The rule “damnum absque injuria” is applicable to this case. Broom, Leg. Max. 184; Shear. & R. Neg. (4th Ed.) 283, 299, and cases cited. Again, in an action arising under the aqueduct act, it was held that the aqueduct commissioners were not the agents of the city, and that it had no control over the manner of doing the work. O’Brien v. Mayor (Cir. Ct.) 15 N. Y. Supp. 523, affirmed 65 Hun, 112, 19 N. Y. Supp. 793, and 139 N. Y. 543, 35 N. E. 323. The judgment should be affirmed, with costs. All concur.