
    Ella J. Filson, Pl’ff, v. George Crawford and Phillip Hausman, Def’ts.
    
      (Supreme Court, Special Term, New York County,
    
    
      Filed May 23, 1889.)
    
    1. Nuisance—Action to restrain—Stable—Defense.
    It is no defense to an action to restrain a nuisance, and for damages, that the stable complained of as a nuisance is well and properly bunt, kept and managed.
    2. Same—Defenses.
    Nor is it in such action a defense that defendants formerly had a smaller stable, occupying a portion of the premises, which caused as much annoyance as the present stable, or that such other stable was in existence before plaintiff’s house was built.
    3. Same—Rights of plaintiff who has sold property pending the ACTION.
    Where plaintiff, in an action to enjoin a nuisance and to recover damages for injury to his property by the existence thereof, parts with the title to his property, pending the action, he can have no relief therein.
    
      Hornblower & Byrne, for pl’ff; Deyo, Duer & Bauerdorf, for def’ts.
   Andrews, J.

It is not necessary for the disposition of this case to decide whether a livery or boarding stable is or is not, per se, a nuisance. There can be no question that if such a stable is so kept and used as to destroy the comfort of persons occupying adjoining premises, and impair their value as places of habitation, it becomes an actionable-nuisance. Dargan v. Waddell, 9 Ired., 244.

In the present case I am of the opinion that the plaintiff has established by a fair preponderance of evidence that the defendants’ stable is a nuisance.

Several witnesses testify that the noise caused by the-stamping of horses in the stable can be plainly heard in plaintiff’s house, and the occupants of that house testify that they have been seriously disturbed and annoyed by such noise, especially in the night time.

The occupants of the plaintiff’s house, and other persons who have been in it, also testify that the odors coming from the defendants’ stable are perceptible in plaintiff’s, house to such a degree as to be offensive.

There is also evidence that such noises can be heard, and such odors perceived, in other houses, in Seventy-third street, which are more distant from the stable than the house of plaintiff.

The testimony so given relates principally to the past-winter, when the windows and doors of the stable and of the-dwelling houses in the vicinity were usually kept closed, and it may be fairly claimed that if such noises and smells-have caused serious annoyance and discomfort in the-winter time, they will necessarily cause much greater annoyance and discomfort during the warm weather, when the windows of the stables and of such dwelling houses will undoubtedly be kept open a considerable portion of the-time.

Several witnesses have been called for the defendants, who testified that they went into plaintiff’s house and listened, but heard little or no noise from the stable, but .this negative testimony cannot prevail against the positive-evidence of a number of witnesses, who swear that the noises from the stable were plainly audible in the house.

Witnesses were also called for the defendants, who-testify that either no odors came from the stable, or that such as did come were not disagreeable to them, but the testimony of these witnesses is of little weight as against-those called by the plaintiff, who testify as to the existence of the odors and their disagreeable character.

The evidence in regard to the effect, upon the value of the-plaintiff’s house and other property, of the existence of defendants’ stable, is to some extent conflicting, but I think it is fairly proven by a preponderance of testimony that the erection and maintenance of defendants’ stable has: seriously depreciated the rental value, and the value of the, fee, of plaintiff’s house and of other houses in Seventy-third street.

It is no defense to this action that the defendants’ stable is well and properly built, and is properly kept and managed. Wood on Nuisances, § 527.

Nor can it avail them as a defense that the smaller stable occupying a portion of their premises caused as much annoyance as the present stable, or that such other stable was in existence before plaintiff’s house was built. Brady v. Weeks, 3 Barb., 157; Chapman v. The City of Rochester, 110 N. Y., 273; 18 N. Y. State Rep., 133; Leonard v. Spencer, 108 N. Y., 338; 13 N. Y. State Rep., 653.

Nor can the defendants protect themselves under the plea that the location selected for their stable was a desirable one, and furnished accommodations which were a convenience to some persons who lived in the vicinity. It would doubtless be a desirable arrangement for many persons engaged in keeping livery or boarding stables, and also be convenient for some of their customers, if such stables could be located upon every block in the finest street in the city, but it will hardly be claimed that stables-should be so located when the inevitable result would be to cause incalculable injury to the adjoining property.

The evidence shows that there were numerous other-places, not far from the location selected by the defendants, which could have been purchased for stable purposes, and at less prices than that which was paid by defendants for the property upon which their stable is now located. The evidence shows that Seventy-second and Seventy-third streets are two of the finest streets on the west side of the city, and it seems to me that the use of the property purchased and owned by the defendants for a stable, which is-so kept as to be a nuisance, is most unreasonable.

There is no evidence that the plaintiff acquiesced in such use, but, on the contrary, it appears that she and other owners of property in Seventy-third street protested against the erection of the stable as soon as they learned that the defendants had bought the property and were proposing to erect the same, and also notified the defendants that they should resort to legal measures to restrain them from erecting and maintaining the stable.

The next question which arises is, assuming that the defendants’ stable is a nuisance, what relief, if any, can the plaintiff obtain in this action ?

It is objected that the plaintiff cannot maintain the action, because the premises were leased by the plaintiff before the stable was erected, and such lease has not yet expired.

It appears by the testimony that Van Bergen went into possession on May 1, 1888, under a lease which will not expire for three years from, that date, the rent being $1,600 for the first year, $1,700 for the second year and $1,800 for the third year.

It is a general rule that a person injuriously affected by a nuisance cannot maintain a bill in equity for an injunction, unless he could maintain an action in a court of law for damages. Wood on Nuisances, § 783.

It is a general rule that if the nuisance is not of a permanent character, or does not produce a permanent injury to the property, the owner of the fqe, except in certain cases, cannot maintain an action at law when the property is in the possession of a tenant under a lease for a term, whether long or short. Wood on Nuisances, § 816.

The landlord can, however, maintain an action at law, if, in consequence of the nuisance, he is prevented from renting his premises, or if he is compelled to rent them at a less price than he could obtain but for the existence of the nuisance, or if the actual value of the property is thereby impaired. Id., § 817.

This action was brought to restrain the erection of the stable before it was completed, and was based upon allegations that the building, when completed and kept as a stable, would be a nuisance.

There certainly was reasonable ground for the plaintiff to anticipate that there would be an injury to the fee of her property, and that she would not be able to rent her house upon the expiration of the present lease, at as high a price as she could but for the existence of the stable.

The building was to be and is large and expensive, and, being constructed expressly for the purpose of a stable, it was evident that it could not well be used for any -other purpose.

It is now claimed on behalf of the defense that the building was put up in the best possible manner, and that it has been kept as well as it could be. Therefore, no improvement can be anticipated, and the apprehensions entertained by the plaintiff when she brought her action, have been realized. The stable is a nuisance, and so long as it is kept in the manner in which it has hitherto been, it will continue to be a nuisance, and doubtless affect the value of the fee of plaintiff’s property, and also the rental value.

Under these "circumstances, I think the fact that the plaintiff is not in possession of the property presents no obstacle to her maintaining this action.

There is, however, another objection which has been raised as to the right of the plaintiff to bring this action, which, to my mind, is a much more serious one.

It appears by the supplemental complaint, and the evidence given thereunder, that since the action was brought, the plaintiff has sold her property for the sum of §26,000, and no longer has any interest in it. It is claimed that for this reason she can have no relief in this action by way of a permanent injunction.

In is clear that plaintiff has suffered no injury to the rental value, because the lease to Van Bergen was made before defendants’ stable was erected, and such lease will not expire until May 1, 1891.

It is also clear that the plaintiff can not have an injunction in this action to restrain the defendants from maintaining this stable upon the ground that the maintenance of the stable will hereafter cause her any loss by diminishing the fee value of the property. Having parted with the fee, any injury hereafter done to it by diminishing its value can not affect the plaintiff.

The plaintiff having sold the property, the question of her right to recover damages for depreciation of the fee value of the property, caused by the erection and maintenance of the defendants’ stable, is by no means free from difficulty.

The learned counsel for the plaintiff places great reliance upon the case of Henderson v. N. Y. C. R. R. (78 N. Y., 423.) It does not seem to me, however, that that case can be regarded as an authority decisive of the present case.

In that case the original plaintiff died pending the litigation, which lasted for many years, and his executors and residuary devisees and legatees were substituted as plaintiffs; it also appeared that when plaintiff sold his property, his claim for damages, caused by reason of the acts of the defendant, was expressly reserved; it also appeared that the damages done by the railroad were clearly of a permanent character, the street in front of the defendant’s land having been cut down and railroad tracks placed thereon; moreover, the street in front of the plaintiff’s land was taken for a quasi public use by a railroad corporation, which had a right to condemn the property, and there would seem to be no doubt that on payment of damages to the plaintiffs who were substituted in place of the original plaintiff, the railroad acquired the right, as against all the world, and for all time, to use the street for the purpose of its business.

In the present case, the plaintiff, pending the litigation, has sold her property to a stranger; so far as appears-before me, her claim on account of depreciation of the fee value of the property, caused by defendants’ stable, was not expressly reserved; the damages to the fee of her property are not necessarily permanent; the stable of the-•defendants may burn down, or its use as a stable may be ■discontinued, or it may be kept and maintained in such a way as not hereafter to be a nuisance; moreover, if the stable shall hereafter be kept in the manner in which it heretofore has been, the nuisance will be continuing, and payment to the plaintiff of damage heretofore done to the fee value will not give the defendant the right, as against any one but the plaintiff, and the present or any subsequent tenant can maintain an action to abate the stable as a nuisance, and obtain an injunction restraining the defendants from maintaining it.

It will thus be seen that the differences between the situation in the Henderson case and in the present case are so great that that case can not be regarded as an authority.

_ Neither do the decisions in actions relating to patents, ■cited by plaintiff’s cousel, appear to be applicable. In those cases the liability for damages caused by infringement ■of patents, prior to the bringing of the actions, was fixed, and the exact amount of the damages was ascertainable, and the fact that the patent expired pending the litigation, plainly afforded no reason why plaintiff should not recover damages incurred before the expiration of the patents.

In the present case, it is by no means clear that the damages caused to the fee value of plaintiff’s property can be now fixed or ascertained. If the nuisance caused by the stable should be abated to-morrow, it certainly cannot be claimed that the plaintiff ought to-day to recover from the defendants the entire difference between the value of the property with the stable, and the value which her property would have without it While the stable, like a tenement house or factory, may be objectionable, and seriously injure the value of other neighboring property, many stables are, undoubtedly, kept in large cities in such a manner that they cannot be regarded in law as nuisances.

But however this may be, I do not see how the defendants can be compelled to pay for the entire alleged depreciation of the fee value of the plaintiff’s property, when, the plaintiff having sold the property, they will acquire no right, as against the purchaser, to maintain their stable in the future. If the plaintiff were still the owner, it is difficult to see what relief she could have in this action, except an injunction to restrain defendants from continuing the nuisance; but even if she could have recovered damages for injury to the fee value, inasmuch as she has sold her property, I do not think that she can obtain any relief at nil in this action, and this conclusion seems to be sustained "by the authorities. Francis v. Schoellkopf, 53 N. Y., 152; Beir v. Cooke, 37 Hun, 38.

The complaint must be dismissed with costs.  