
    Walter P. Horne et al., as the Board of Water Commissioners for the Village of Suspension Bridge, N. Y., Resp’ts, v. The City of Buffalo and John Martin, as Street Commissioners, etc., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Nuisance—Venue—Dumping filth into river—Place where nuisance IS COMMITTED.
    The complaint charges the defendants with maintaining a nuisance, and this action is to restrain them from continuing the same. The city of Buffalo authorizes its officers to collect in large quantities refuse matter, etc., which is habitually and almost daily dumped into the current of Niagara river, at a certain place in Erie county, 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 complaint also alleges that the impure and foul matter, etc., so deposited by the defendants are carried by the current of the river down to the place, which is in Niagara county, where the water supply of the village of Suspension Bridge is drawn from said river by the plaintiffs, rendering the same foul and unhealthy and unfit for domestic use. Held, that the nuisance described in the complaint was situated and the unlawful act done in the county of Erie at the place where the defendants were in the habit of dumping foul substances into the Niagara river.
    2. Same—Venue—Right to change—What dabs not defeat.
    The plaintiff cannot defeat the right of a party defendant to have the trial of the action take place in a particular county by joining with him as defendant another party who cannot insist that the trial should take place in that other county.
    3. Same—Right of action—Judgment—Code Civ. Pro. § 1660.
    A right of action in the nature of the common law writ for a nuisance is preserved by Code Civ. Pro. § 1660. The judgment in such an action may be for damages or for the removal of the nuisance or both.
    4. Same—Subject of an action—Code Crv. Pro. § 982.
    “ The subject of an action ” as that phrase is used in Code Civ. Pro. § 983 is that which is to be directly affected in case the relief demanded by the plaintiff is granted.
    5. Same—What the subject of an action for nuisance.
    The subject of an action for a nuisance is the object or structure men tioned 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.
    6. Venue—Actions against public officers—Where tried.
    All actions against a public officer for an act done by virtue of his office must be tried in the county where the cause of action or some part thereof arose. Dwight, J., dissenting.
    An appeal from an order of the Niagara county special term, denying the defendants’ motion to change the place of trial from the county of Niagara to the county of Erie.
    
      Frank C. Laughlin, for applts; W. Carl Ely, for resp’ts.
   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 defend-ants 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 section 982 and 983 of the Code of Civil Procedure.

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 substances, 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. M. and I. N. Co. v. Douglas, 2 East, 502; Warren v. Webb, 1 Taunt., 379; Vt. and Mass. R. Co. v. Orcutt, 16 Gray, 116; Queen v. Cotton, 102 Eng. Common Law (1 Ellis & E.), 203.

Before the Code, this rule prevailed in the 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 Tight of action in the nature of the common law writ for a nuisance, is preserved by section (660,) of the Code of Civil Procedure. See, also, 2 R. S. 427, § 1 (3d ed.).

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 chai’acter. The intention of the legislature to make 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 in which 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. Hibernia Nat. Bk. 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, that he as street commissioner, be restrained from dumping refuse material, etc., into the Niagara river, above the place where the plaintiffs draw their water supply therefrom. This is an an action ex delieto 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 tor use at the place-where they draw their supply therefrom. But that is one of the consequences arising from the defendant’s unlawful act done at another place. Whatever may be the form cf the action, the breach of duty, or unlawful act complained of,, is substantially the cause of action. President, etc. v. R. and W R. 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.  