
    Horne et al., Water Com’rs. v. City of Buffalo et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1888.)
    Nuisance—Action to Abate—When Maintainable.
    The city of Buffalo, in Erie county, dumps its street sweepings and other foul matter into the Niagara river, in that county. The village of Suspension Bridge, on the same river below, in Niagara county, draws its water therefrom, in the latter county. Held, in an action by the village water commissioners against the city and its street commissioner, brought in Niagara county, to abate such dumping as a nuisance, that the cause of action arose in Erie county, and defendant was entitled to have the action removed to that county for trial, under Code Civil Proc. N. Y. SB 98S_, 983, providing that certain actions, including actions for a nuisance, must be tried in the county where the cause of action, or some part thereof arose. Dwight, J., dissenting.
    Appeal from special term, Niagara county.
    Action by Walter P. Horne and the other water commissioners for the .village of Suspension Bridge against the city of Buffalo and John Martin, its street commissioner, to enjoin defendants from continuing a nuisance by dumping refuse matter in the Niagara river. Defendants appeal from an order refusing their motion to remove the trial from Niagara county to Erie county.
    Argued before Barker, P. J„ and Haight, Bradley, and Dwight, JJ.
    
      Frank C. Laughlin, for appellants. W. Carl. Fly, for respondents.
   Barker, P. J.

The complaint charges the defendants with maintaining a nuisance. This action is to restrain the defendants from continuing the same. The city of Buffalo authorizes its officers to collect, in large quantities, refuse matter, street sweepings, and other foul material, which is habitually and almost daily deposited or dumped into the current of Niagara river; thereby, as the plaintiff alleges, polluting and rendering unfit for domestic use the waters of the said river at several places above the falls. The plaintiffs, as the board of water commissioners for the village of Suspension Bridge, have the charge and management of the water system for that village, and draw the supply from Niagara river at a point above the falls, in the county of Niagara. The complaint also alleges that the impure and foul matter and substances, so deposited by the defendants, are carried by the current of the river down to the place where such water supply is drawn from the said river by ■ the plaintiffs, rendering the same foul and unhealthy, and unfit for domestic use. For the purposes of this appeal it must be conceded that the place of dumping the said material into the river is in the county of Erie. Both of the defendants claim that the proper place of trial of this action is in the county of Erie, under the provisions of sections 982,- 983, Code Civil Proc.

If either defendant may demand, as matter of right, that the trial should take place in Erie county, then the motion should have been granted; for the, plaintiff cannot defeat this right, as to one of the defendants, by joining with him another party who cannot also insist that the trial should take place in another county. People v. Kingsley, 8 Hun, 233. By section 982 it is provided that an action for a nuisance must be tried in the county in which the subject of the action, or some part thereof, is situated. The question is, is the subject of this action situated in the county of Erie, where the foul substances are deposited in the river, or in the county of' Niagara, where the water polluted by the said substance is taken from the stream for the use of the inhabitants of the village of Suspension Bridge? “The subject of an action,” as that phrase is used in this section, is that which is to be directly affected, in case the relief demanded by the plaintiff is granted; as, in an action of ejectment, the land described in the complaint, or, in an action for a nuisance, the object or structure mentioned and alleged to have been unlawfully constructed or erected, or the action, practice, or doings of the defendant, which are charged to be illegal, and are stated in the complaint as the foundation for the relief demanded. In most instances the subject of a nuisance has a situs, and is in some way or manner connected with or attached to the realty, and is capable of a local description, so that the precept which may be issued by the court to carry its judgment into effect may designate the object or structure which is to be abated by the officer to whom the precept is directed. By the common law an action for a nuisance is regarded as local in its nature, and the venue is required to be laid in the county where the nuisance was situated. Navigation Co. v. Douglas, 2 East, 502; Warren v. Webb, 1 Taunt. 379; Railroad Co. v. Orcutt, 16 Gray, 116; Queen v. Cotton, 102 E. C. L. 202. Before the Code, this rule prevailed in this state. If the defendants were to be prosecuted criminally for their unlawful action, as charged in the complaint, the indictment would have to be found and tried in the county of Erie, where the acts charged to be unlawful were committed. A right of action, in the nature of the common-law writ for a nuisance is preserved by section 660, Code Civil Proc. See, also, 2 Rev. St. (3d Ed.) p. 427, § 1. The judgment, in such an action, may be for damages, or for the removal of the nuisance, or both. The plaintiffs in this action seek to restrain the defendants from repeating the unlawful acts complained of, which, if granted, will be effectually to abate or discontinue the nuisance described, The provisions of section 982 apply to all actions brought to abate a nuisance, whether the action is legal or equitable in its character. The intention of the legislature to an action for the abatement of a nuisance local is clearly manifested by classifying it with actions which are in their nature local, such as ejectment and waste. I am clearly of the opinion that the nuisance described in the complaint is situated in the county of Erie, at the place where the defendants are in the habit of dumping foul substances in Niagara river. The defendant Martin is the street commissioner for the city of Buffalo, and a public officer. All his official duties, as prescribed by the charter of the city of Buffalo, are to be performed within its corporate limits, which are also within the county of Erie. It is not alleged that he did any act in his official capacity outside of the limits of the city of Buffalo; and, as to him, I think the proper place of trial is the county of Erie, as provided by section 983. By that section all actions against a public officer for an act done in virtue of his office must be tried in the county where the cause of action, or some part thereof, arose. It is often a difficult question to determine where the cause of action arises. A breach of the terms of a contract gives a right of action to the party who is injured thereby, and the place where the contract was to be performed, and the breach took place, is the place where the cause of action arises. Bank v. Lacombe, 84 N. Y. 367. This action, as to the defendant Martin, is based upon his action as a public officer, and the judgment demanded is that he, as street commissioner, be restrained from dumping refuse material, etc., in the Niagara river above the place where the plaintiffs draw their water supply therefrom. This is an action ex delicto, and the defendant Martin has not committed any trespass upon the plaintiff’s property, nor has he done or performed any act in Niagara county which has resulted in an injury to the plaintiff. He is charged with doing an unlawful act in the county of Erie, which has resulted in a damage to the plaintiffs. It is true, as argued by the counsel for the plaintiffs, that no cause of action arose in their favor until the water of the river was corrupted, and became unfit for use at the place where they draw their supply therefrom. But that is one of the consequences arising from the defendants unlawful act done at another place. Whatever may be the form of action, the breach of duty, or unlawful act complained of, is substantially the cause of action. President, etc., v. Railroad Co., 10 How. Pr. 9. The order should be reversed, and the place of trial changed to Erie county.

Haight, J., concurs. Bradley, J., concurs in the result on the last point .stated. Dwight, J„ dissents.  