
    Joshua R. Gerow, Respondent, v. The Village of Liberty, Appellant.
    
      Nuisance — village sewage disposal plant — action in equity to restrain its use — damages not recoverable for physical discomfort, sickness, etc., ivheresuch facts are proved, but the damages resulting therefrom are not — the measure of damages is the difference in rental value — no claim need, be filed with the village cleih.
    
    In an action brought against a village by the proprietor of a boarding house, . located 975 feet distant from a sewage plant maintained by the village, to recover damages and to restrain the continued maintenance of the plant on the ground that it constitutes a nuisance, it is competent for the court, the action being in equity, to receive evidence relating to damages which accrued subsequent to the commencement of the action and down to the time of the trial.
    In such an action the court may properly refuse to charge “ that the plaintiff cannot recover for any physical discomfort, annoyance oriuconvcnience arising from alleged odors; nor can he recover for any alleged sickness suffered by himself, his family or his guests,” where, although the plaintiff gave evidence relating to such matters for the purpose of proving the existence of the nuisance, he had given no evidence showing that any damages resulted from such matters.
    The measure of damages recoverable in such a case is the difference between the rental value of the plaintiff’s property prior to the erection and maintenance of the sewage plant and its value thereafter.
    Section 322 of the Village Law (Laws of 1897, chap. 414), requiring claims against a village to be filed with the village clerk within six months after the cause of action accrued, does not apply to an equitable action to obtain relief from an alleged nuisance.
    
      .Appeal by the defendant, The Village of Liberty, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 8th.day of March, 1904, upon the decision of the court rendered after a trial at the Sullivan Trial Term, certain questions having been submitted to a jury, and also from an order made during the trial and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes. '
    
      D. S. Hill, for the appellant.
    
      T. F. Bush and Frank S. Anderson, for the respondent.
   Chester, J.:

The action is one brought for damages caused by an alleged nuisance, and to restrain the continuance thereof. The plaintiff keeps a large boarding house, in which he resides, in the town of Liberty. The village of Liberty, the defendant, has erected its sewage disposal works about 975 feet distant from the plaintiff’s residence and boarding house. The plaintiff alleges that these works cast off a penetrating, offensive, noxious, unhealthy and sickening odor destructive of the health of the plaintiff, his family and guests, and that he has thereby suffered loss- and damage.

The jury, in response to certain questions submitted to them by the court, have found that the sewage disposal plant-was a nuisance to the plaintiff and his premises, as maintained by the defendant, prior to August 21,1901, which was the date of the commencement of the action, and also that such plant has been maintained as a nuisance to the plaintiff and his premises since that date; that the rental value.of. the plaintiff’s property has been depreciated from September 1, 1.900, which was the date of the installation of the works, to the time of the commencement of the action in. the sum of $400,. and that such rental value has been depreciated since the action was commenced and down to the date of the trial in the siim of $600. The court adopted the verdict of the jury in its decision and awarded an injunction restraining the defendant from continuing the nuisance and awarded him the damages found by the jury. From the judgment entered upon such decision this appeal is taken.

The verdict and decision that the sewage disposal works maintained by the defendant constituted a nuisance to the plaintiff and to liis premises is amply sustained, by the evidence. The action being-in equity it was entirely competent for the court to receive evidence of the damages which had accrued down to the time of the trial, and the objections of the defendant to testimony relating to damages subsequent to the commencement of the action were, therefore, properly overruled by the court. (Kilbourne v. Supervisors, 137 N. Y. 170, 178.)

There was no error in the court’s refusal to charge the jury, at the defendant’s request, “ that the plaintiff cannot recover for any physical discomfort, annoyance or inconvenience arising from alleged odors; nor can he recover for any alleged sickness suffered by himself, his family or his guests,” for the plaintiff had given no evidence showing any damages arising from these causes. The evidence relating thereto was competent and had been properly received on the question of the existence of the nuisance, but as the plaintiff had not sought to recover any damages because of these matters the denial of the request was correct. The court had told the jury that" the plaintiff asks for a judgment against the defendant “for the difference between the rental value of his property prior to the erection and maintenance of the disposal works and its value after that was erected.” The case was submitted to the jury upon that theory, and that was the correct measure of damages. (Francis v. Schoellkopf, 53 N. Y. 152.)

The contention of the appellant, that the plaintiff was not entitled to recover because of his failure to file with the village clerk, within six months after the cause of action accrued, a verified statement of the nature of his claim, as required by section 322 of the Village Law (Laws of 1897, chap. 414), has no merit, for the reason that that section applies only to actions for damages for a personal injury and an injury to property alleged to have been sustained by reason of the negligence of the village, or of any officer, agent or employee thereof. This was not such an action, and the section has no application to a suit on the equity side of the court for relief from an alleged nuisance. (Sammons v. City of Gloversville, 175 N. Y. 346.)

We fail to discover, any error on the trial requiring a reversal. The judgment should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  