
    J. Wesley Childers et al., Appellants, v. New York Power and Light Corporation, Respondent.
    Third Department,
    May 4, 1949.
    
      
      William A. Glenn, attorney (William Evans of counsel), for appellants.
    
      Albert J. Danaher, attorney (Julian B. Erway and Thomas E. Ryan of counsel), for respondent.
   Deyo, J.

The action is for treble damages for trespass, and the resulting destruction of a shade tree allegedly standing on plaintiffs’ property. The separate defense complained of is to the effect that the defendant caused the tree to be cut down because its rotted and diseased condition presented an imminent menace and danger to persons lawfully using defendant’s nearby right of way and to defendant’s wires and adjacent buildings to which such wires were attached.

It is an ancient principle of common law that an individual who suffers injury from a private nuisance may summarily abate the same without resort to legal proceedings, provided he can do so without causing a breach of the peace. As a general rule, the party asserting this right must first give notice of his intention to do so. However, if danger is imminent to health, life or property, and the necessity of prompt removal be urgent, previous notice may be excused. (Harrower v. Ritson, 37 Barb. 301, 305; 39 Am. Jur., Nuisances, § 191 et seq.; 46 O. J., Nuisances, § 358 et seq.; Joyce on Nuisances, § 374 et seq.; Restatement, Torts, § 201 et seq.)

The sum and substance of the allegations complained of is that the tree constituted a private nuisance which was an imminent danger to the defendant and others. The defense was therefore properly interposed without an allegation of prior notice, and is sufficient in law.

Order affirmed, with $10 costs to the defendant-respondent.

Foster, P. J., Heeeernax', Saktry and Bergak, JJ., concur.

Order affirmed, with $10 costs to defendant-respondent.  