
    Michael Kavanagh, Resp’t, v. A. L. Barber, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 23, 1891.)
    Nuisance—Damages.
    Plaintiff and his family occupied a house owned by his wife. Defendant erected a building opposite said house for the manufacture of paving- and'roofing materials, and in doing so boils asphaltum, etc., which emit offensive and unwholesome gases and stenches, by reason of which plaintiff's family have been deprived of the use of part of the house and have been made sick, and plaintiff has been deprived of the services of his wife and children, and been compelled to pay for medical attendance on account of such sickness. Held, that although plaintiff was not the occupant of the premises on which the injury was received, he was an occupant of them, and was entitled to recover for the particular injury sustained by him.
    Appeal by the defendant from a judgment entered on the verdict of a jury at the Brie circuit.
    
      Spencer Clinton, for app’lt; H. C. Day, for resp’t.
   Dwight, P. J.

The action was to recover for damages alleged to have resulted to the plaintiff from a nuisance maintained by the defendant.

The complaint alleges “ that for about fourteen years last past this plaintiff has resided with his family, consisting of his wife and five children, in a house and lot owned by plaintiff’s wife on the northerly side of Fourth street in the city of Buffalothat about six years ago the defendant erected on the same street and opposite the plaintiff’s house,” and has since maintained an establishment for the manufacture of paving and roofing material, where he heats and boils asphaltum and other substances which emit offensive and unwholesome gases and stenches which render the air in the locality of the plaintiff’s dwelling foul and unwholesome ; that by reason thereof plaintiff and his family have been put to inconvenience, discomfort, sickness and damage; have been obliged* to keep the doors and windows of their dwelling closed day and night even in hot weather; that their food has been impregnated by such gases so as to be disagreeable to the taste and unwholesome; that fine sand and soot and other matter engendered in the defendant’s factory have been blown into the plaintiff’s dwelling to such an extent that plaintiff and his family have been deprived of the use of the front room; that plaintiff and his family have been deprived thereby of the ordinary and comfortable use and enjoyment of said dwelling and premises; that the plaintiff’s wife and family have been made sick by said smells, sand and stenches, and one of plaintiff’s daughters died from sickness caused or aggravated thereby; that the plaintiff has been deprived of the services of his wife and children by reason thereof, and has been compelled to pay for medical attendance on account of such sickness, and that by reason of the matters aforesaid the plaintiff has sustained loss and damage in the sum of $10,000.

The answer admits the erection and maintenance by the defendant of the establishment and apparatus for the manufacture of paving and roofing material from asphaltum and other substances and that he therein heats and boils asphaltum and other substances, but denies that he has done or does so in violation of any rights of the plaintiff, and denies the evil effects and results therefrom alleged in the complaint

The principal contention of the defendant on this appeal is that the plaintiff could not maintain the action because he was not the owner of the house and lot where the injury complained of was received. It is true that the plaintiff cannot recover for any injury to or depreciation in the value of the premises the title to which not only, but the possession also, is in the wife. Though the head of the family, he is not “in any legal sense the possessor or occupant of the house or land in or upon which the family reside.” Martin v. Rector, 101 N. Y., 77. But it is a mistake to suppose that this action is necessarily confined to injuries to the realty only. Under the technical definition of the common law the term “ private nuisance ” was, no doubt, chiefly, if not exclusively, applied to such acts as were “to the hurt or annoyance of the lands, tenements or hereditaments of another,” 3 Black Com., 216, and a common or public nuisance could ordinarily be prosecuted only by indictment or in the name of the crown or people. But, whether by enlargement of the definition of private nuisances, or by extending the right of private action to cases of common or public nuisance, it is certain that the individual action is not by any means confined to cases which affect the realty. The definition in Sutherland on Damages, quoted by ■counsel for the appellant, vol. 3, p. 394, is much in point. It is there said that a private nuisance “may be any wrongful act which destroys or deteriorates the property of another, or interferes with his lawful use or enjoyment thereof, or any act which unlawfully hinders him in the enjoyment of a common or public right, and thereby causes him a special injury.” By which is apparently intended that the former is a private nuisance because it violates a private right, the latter is a private nuisance because, though the violation is of a public right, it inflicts a particular injury upon a private person.

In Lansing v. Smith, 4 Wend., 9, Chancellor Walworth said that if a person sustained no damage but that which the law_pre■sumes any citizen to sustain because it was a common nuisance, no action will lie ; “ but every individual who receives actual damage from a nuisance may maintain a private suit for his own injury although there may be others in the same- situation.” In Francis v. Schoellkopf, 53 N. Y., 152, Grover, J., said: “The rule is that one erecting or maintaining a common nuisance is not liable to an action at the suit of one who has sustained no damage therefrom except such as is common to the entire community, yet he is liable at the suit of one who has sustained damage peculiar to himself; no matter how numerous the persons may be who have sustained this peculiar damage, each is entitled to compensation for his injury. And the cases are very numerous to the same effect. Peck v. Elder, 3 Sand. 126; Stetson v. Faxon, 19 Pick., 147; Abbott v. Mills, 3 Verm., 529.

Whether then the nuisance in this case be denominated public or private the plaintiff had his action for the particular injury sustained by him. But we think the case was clearly within the sense of the definition first given of a private nuisance. Though not the owner, nor, in the legal sense of the term, under the married woman’s acts, the occupant or in possession of the premises upon which the injury was received, he was an occupant of the premises with the duty as well as the privilege of such occupancy so long as it was the home of his wife and family. So long it was his home and he had as good right to be protected in his enjoyment of it as if the title and legal possession had been in him. It was upon this theory that the court below sustained the action and submitted the case to the jury.

The case made was of an aggravated nuisance. The damages recoverable by the plaintiff were restricted by the court to such as were personal to himself, and the verdict was, in our opinion, far from excessive.

We think the judgment should be affirmed.

Macomber, J., concurs; Corlett, J., not sitting.  