
    Jennie Hochstrasser, App’lt, v. George B. Martin et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 6, 1893.)
    
    Nuisance—Charge.
    In an action to restrain a private nuisance and for damages, the condition of plaintiff’s property; how it is used and occupied, and whether its character is such that could be or was injured by the act complained of, are all circumstances to be considered by the jury in determining whether plaintiff has been injured, and hence a refusal to charge “ that the condition of plaintiff’s henery 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 a submission of the question whether it was a locality where a nuisance would be created by running a stable, is proper.
    Appeal from judgment in favor of defendants, entered upon verdict.
    Action to restrain defendants from maintaining a nuisance upon their premises, which are fifty feet from plaintiff’s, and for damages.
    Defendant Martin owned the premises in question, upon which was a barn, and had let the same to defendant Eaton. Plaintiff claimed and gave evidence to prove that a quantity of manure had been permitted to collect on the premises, and that when wagons were washed thereon the water ran down upon her premises and caused the same to be unhealthy and unfit for use. Defendants gave evidence tending to show that plaintiff’s henery and water closet were in bad condition.
    
      E. F. Bullard, for app’lt; Foley & Wing (John Foley, of counsel), for resp’ts.
   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 henery 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 his 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., 579-82.

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, to 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.

Mayham, P. J., and Putnam, J., concur.  