
    James H. Hooker, Resp’t, v. The City of Rochester, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 23, 1891.)
    
    Judgment—Findings—Remedy foe failure to make.
    In an action for an injunction and damages, specific issues were tried by a jury, and judgment was directed to be entered for the amount of their verdict and for an injunction. Such judgment was entered ex parte, but no findings were made by the court. Meld, that defendant’s remedy was by motion to vacate the judgment for irregularity, and not by appeal.
    Appeal from a judgment entered in Monroe county, June 24, 1889, for $800 damages, besides costs, being the amount of a verdict at the circuit on issues framed in an action for maintaining a nuisance, and by which also the defendant was permanently enjoined from continuing such nuisance after October 1, 1889.
    
      C. B. Ernst, for app’lt; J. & Q. Van Voorhis, for resp’t.
   Macomber, J.

This action was brought to obtain an injunction restraining the defendant from discharging sewage from Rorth avenue outlet sewer, in the city of Rochester, into Hobbie creek in the town of Irondequoit, which runs through the plaintiff’s farm, consisting of 143 acres. Upon issues submitted to the jury at the circuit a verdict of $800 for the plaintiff was rendered, and subsequently, on application to the court at special term, judgment was directed to be entered thereon and for an injunction perpetually restraining the continuance of the nuisance after October 1, 1889.

After repeated decisions of this court and of the court of appeals, the question whether an action may be maintained for damages for discharging the sewage of this city through creeks of adjacent towns to the detriment of the lands along such creeks, together with an injunction restraining such unlawful use, can no longer be deemed open. Hooker v. City of Rochester, 37 Hun, 181; Affd., 107 N. Y, 676; 12 N. Y. State Rep., 864; Gould v. Same, 105 N. Y, 46; 6 N. Y. State Rep., 503; Bell v. Same, 58 Hun, ; S. C., 33 N. Y. State Rep., 739.

But a point of practice is made by counsel for the appellant which deserves attention. After the coming in of the verdict, an application was made to the special term for judgment for the damages found by the jury and for other relief prayed for in the complaint. This motion was opposed, at least formally, by the defendant’s counsel, but it was nevertheless granted, and judgment, in accordance with the directions contained in the order, was subsequently entered by the plaintiff’s attorney ex parte.

The position, is now taken by the appellant that the issues relating to the right to the injunction should have been tried before the court without a jury, and a decision containing findings of 'fact and law, signed by the justice, rendered thereon. Such is the undoubted practice presented by § 972 of the Code of Civil Procedure, and, for the sake of harmony of procedure, it should have been adhered to in this instance. But the appellant is in fact responsible for the departure in practice; for no objection based on this ground was made to the granting of the order. A preliminary objection of this character interposed at that time would have been effectual; but it was not made. On the contrary the order was granted upon the merits of the case.'

The entry of the judgment without proper findings'was merely an irregularity. An appeal from the judgment and order cannot remedy such irregularity. It was competent for the justice, as a part of the proceeding at special term, to make and sign his decision. The defendant’s counsel doubtless had a right to assume that this step would be taken before the entry of the judgment. What, then, was his duty when he found that the judgment had been entered ex parte, supported by the order already made? It was to make a motion to vacate such judgment for irregularity, as was done in the case of Hammond v. Morgan, 101 N. Y., 179, and not by appeal.

“ The defendant,” says the court in that case, did not have a remedy for the error or irregularity he complained of by an appeal from the order or judgment. His only remedy was by motion.”

The judgment should be affirmed, with costs.

Dwight, P. J and Corlett, J., concur.  