
    George G. Sickles, App’lt, v. New Rochelle Board of Health, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 23, 1886.)
    
    Board of health—New Rochelle—Power of—Laws 1885, chapter 370 Injunction—Trespass.
    The matter o" drains and cesspools is properly within the cognizance of a board of health, their action as to them should not be restrained or the question whether the thing complained of is a nuisance be tried first in equity. If the board proceed without authority, or irregularly, the party has a complete remedy by a suit in trespass
    Appeal from order sustaining the demurrer to the complaint made at special term.
    
      W. II. H. Bussell, for app’lt; Charles H. Young, for resp’t.
   Cullen, J.

This is an action to enjoin the defendant from interfering with the lands or premises of the plaintiff, and from suing the plaintiff for violating its ordinances.

The defendant notified the plaintiff to discontinue the discharge of drains from his houses into a ditch or watercourse in the rear, and to construct a cesspool. The complaint alleges that the acts complained of are not a nuisance, and that the cesspool is unnecessary. The defendant’s demurrer to this complaint was sustained at special term, and from the order there made, this appeal is taken.

We think that the complaint set forth no equitable relief. So far as this action seeks to restrain the imposition of a fine or penalty it should not be maintained, because if the defendant’s acts are illegal, the plaintiff has a complete defense at law to any suit to enforce the penalty. Wallack v. Juvenile Society, 67 N. Y., 23.

If the action is to be considered as also seeking to restrain a trespass by defendant (which is very doubtful), still it is not a proper case for injunction. By the statute the duty is imposed on the defendant to examine any place or premises where nuisances or conditions dangerous to life or health are known or believed to exist, and to order the suppression and removal of such nuisances or conditions, and to make all orders and regulations as they shall think necessary and proper for the preservation of life and health. Chap. 270, Laws of 1885. The matter of drains and cesspools is properly within the cognizance of the board of health. The subject-matter being within their jurisdiction, it is not proper that their action should be restrained, and the question first tried in equity, whether the thing complained of is a nuisance. If the board proceed without authority or irregularly (though in what respect these irregularities exist is not stated in the complaint), the plaintiff has a complete remedy by a suit in trespass. No ground of equitable relief in this aspect of the case is shown.

The order sustaining the demurrer should be affirmed with costs.

Barnard, P. J., concurs.  