
    HOCHSTRASSER v. MARTIN et al.
    (Supreme Court, General Term, Third Department.
    December 6, 1893.)
    Nuisance—Damages—Instructions.
    In an action for damages for maintaining a stable on a lot adjoining that of plaintiff, on the ground that odors from the stable rendered it a nuisance, there was evidence that a henhouse on plaintiff’s lot was very offensive. Held, that the court properly refused to charge that the condition of the henhouse was immaterial, and left it to the jury to say whether the locality was such that defendant’s stable was a nuisance.
    Appeal from circuit court, Saratoga county.
    Action by Jennie Hochstrasser against George B. Martin and Alvin G. Eaton to enjoin the maintenance by defendants of a stable on a lot adjoining that of plaintiffs, and for damages. There was evidence that a henhouse and privy on plaintiff’s lot were very .offensive, and one witness testified that they were more offensive than the stable. There was a judgment in favor of defendants, and plaintiff appeals.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    E. F. Bullard, for appellant.
    Foley & Wing, (John Foley, of counsel,) for respondents.
   HERRICK, J.

Substantially the only question raised upon this appeal is upon the refusal of the judge to charge “that the condition of plaintiff’s hennery and privy are wholly immaterial in this case, except so far as they would reduce the rental value of the premises without the nuisance in question;” and Ms charge: “I shall refuse to charge in that regard, and leave it to you, the jury, to consider as to the circumstances of the locality, and to say whether it was a locality where a nuisance would be created by running a stable. A private nuisance is defined to be anything done to the hurt or annoyance of lands, tenements, or hereditaments of another.” Heeg v. Licht, 80 N. Y. 579-582. It is a material circumstance. Therefore, in determining the question whether the thing is or is not a nuisance, for the jury to determine whether the plaintiff has been in fact hurt or injured, and it needs no argument, it seems to me, 1 o show that the condition of the plaintiff’s property, how it is used and occupied, the character, kind, and description of the property, whether the property was of that character, or so used, that it could be or was injured by the act complained of, are all circumstances-to be taken into consideration by the jury in determining the question whether or not the plaintiff has been in fact injured or hurt, —whether in truth the act complained of is a nuisance; consequently, the locality, the character of the locality, the business there carried on, the liability to injury or damage to the people and property located and residing there, are material elements in determining whether a business is or is not a nuisance. Heeg v. Licht, supra. It seems to me, therefore, that the court was correct in its charge and its refusal to charge, and that the judgment should be affirmed. There is no occasion for an opinion. All concur.  