
    Demby v. City of Kingston.
    
      (Supreme Court, General Term, Third Department.
    
    May 21, 1891.)
    1. Husband and Wife—Action by—Damages to Joint Property.
    The husband alone may maintain an action for damages caused by a nuisance to premises-owned by himself and wife as tenants by the entirety.
    2. Vendor—Rights—Damages Accruing before Sale.
    Where, pending an action for damages to premises caused by a nuisance, the owner sells and conveys the premises, he may still have judgment for such damages, since it will be presumed that the existence of the nuisance affected the price received to the extent of the damages recovered.
    8. Municipal Corporations—Defective Sewers—Liability for Defects.
    Defendant availed itself of a stream passing through plaintiff’s premises for the purpose of a storm-water sewer, but householders in the vicinity, after the introduction of water into the city, availed themselves of the stream by connecting their waste-pipes therewith, and using it as an open sewer. It remained in this condition several years, offensive and injurious to plaintiff’s health. Held,, that defendant was liable for the damages occasioned by the use of the sewer by private parties, without its knowledge and consent, and contrary to its rules.
    4. Same—Defective Sewers—Injunction.
    Defendant, a municipal corporation, cannot set up the defense, to an action for an injunction to restrain the maintenance of a nuisance in the form of an open sewer, that it cannot enter lawfully upon the premises of parties using the sewer for the purpose of abating the nuisance.
    Appeal from circuit court, Ulster county.
    Action by Joshua P. Demby against the city of Kingston. Defendant appeals from a judgment awarding damages and an injunction, entered upon the decision of the court upon the verdict of a jury. 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.
    
      Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      C. D. B. Hasbrouck, for appellant. F. A. Westbrook, for respondent.
   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 was, 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 36 feet distant. He eovéred 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. Hunan, 92 N. Y. 152; Lord v. Lord, 11 N. Y. Supp. 389;) 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 finding 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,^nd should recover for the one he lost. The appellant- urged 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 closets and waste-pipes with this sewer. No 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 aldermen inspected the place of the offensive discharge from time to time, 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 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. Thp 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 matters 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 as 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. All concur.  