
    KAVANAGH v. BARBER.
    (Supreme Court, General Term, Fifth Department.
    April 13, 1893.)
    1. Pleading and Proof—Evidence Admissible.
    In an action for damages caused by a private nuisance, where it appears that the title to the premises alleged to have been injured is in plaintiff’s wife, and there is no allegation in the complaint of any title or interest in plaintiff, an offer to prove an agreement between plaintiff and his wife, under which he was to occupy the premises as a home for himself and children as long as he lived, and to control the same, is properly denied as incompetent.
    2. Pleading—Amendment—After Reversal on Appeal.
    A judgment in plaintiff’s favor was reversed by the court of appeals on the ground that the title to the injured premises was in plaintiff’s wife, and that there -was no allegation or proof that plaintiff had any interest therein. Held, on a retrial of the action, that the general term would not reverse the action of the special term in refusing plaintiff leave to amend" his complaint so as to allege an agreement between himself and wife giving him a life estate in the premises, in the absence of any showing excusing the failure to insert such allegation in the original complaint.
    Appeal from circuit court, Erie county.
    Action by Michael Kavanagh against Amzi L. Barber for damages caused by a nuisance created by defendant From a judgment entered on a nonsuit directed at the circuit, plaintiff appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    H. C. Day, for appellant.
    Sheldon "T. Viele and Clinton Spencer, for respondent.
   MACOMBER, J.

Upon the first trial of this cause there was a disagreement of the jury. A second trial was had, which resulted in a small verdict for the plaintiff. It was affirmed by this court in an opinion reported in 59 Hun, 60, 12 N. Y. Supp. 603; but Was reversed by the court of appeals in a decision reported in 131 N. Y. 211, 30 N. E. Rep. 235. This action was brought to recover damages alleged to have been sustained by the plaintiff by reason of a nuisance created by the defendant in operating a factory for the manufacture of asphalt for paving purposes. There was sufficient evidence given on the former trial, which was reviewed by this court, to sustain the plaintiff’s allegation that the fumes arising from the asphalt penetrated the house occupied by himself and his family, to their great annoyance and discomfort. It was shown that the air of the whole neighborhood was tainted with the odor, and there was some evidence that members of the plaintiff’s family became ill thereby. The principal damage, however, for which this action was brought, as is stated by the court of appeals in its decision hereinafter referred to, was in the personal discomfort to which the plaintiff was subjected in the occupation of the house. The court of appeals reversed the judgment of this court, and granted a new trial, upon the ground, as we understand it, that there was no allegation or proof that the plaintiff had any title or interest, as lessee or otherwise, in the land which was affected by the nuisance. That court, by Andrews, J., says:

“Tile house was owned by plaintiff’s wife, and had been occupied for fourteen years by the plaintiff and Ms family, and was so occupied when the manufactory of the defendant was built. The plaintiff, so far as appears, has no hen or other Mterest in the realty. The family, as is to be inferred, lived in the house by sufferance of the wife. The possession of the house followed the legal title. Both the occupation and the possession, in a legal sense, was that of the wife, and not of the husband. Martin v. Rector, 101 N. Y. 77, 4 N. E. Rep. 183. The husband supported the family. The question presented is whether, under these circumstances, a private action can be maintained by the husband for the discomfort caused by the offensive vapors. We find no precedent for such an action by a person so situated.”

Thence follows a review of the important and controlling cases and authorities upon the question discussed, and the conclusion, as above stated, was reached that the plaintiff could not maintain this action upon proofs as there disclosed, and a new trial was accordingly granted. The learned counsel for the plaintiff, however, upon the third and last trial, when a nonsuit was directed by the trial court on the ground that the complaint did not state a cause of action, offered to prove certain facts which were stated by counsel in the opening of the case to the jury, the material portion of which was as follows:

"That the plaintiff intermarried with Ms present wife about twenty-two years ago, and that prior to that time he occupied another dwelling in the same block as the one now owned by Ms wife, and occupied by her and the family, but his present wife continued to live with Mm in Ms former residence until they removed, with the cMldren, to the present abode, mentioned in the complaint; that the plaintiff furnished all the money to purchase the lot and to build the house No. 347 Fourth street, and has ever since occupied, pas sessed, and controlled the same, paying all the taxes assessed thereon, and paymg for all the repairs and improvements wMch have since been made thereto; that he, the said plaintiff, has, ever since the purchase of said premises, No. 347 Fourth street, and the building of said house thereon, occupied, possessed, and controlled the same under an agreement made by Mm with his said wife, when said premises were first purchased and paid for by Mm and the title thereto taken in the name of Ms said wife, that he, the said plaintiff, with Ms said cMldren, might occupy the same as a home for Mm-self and his children as long as he lived, and that he might occupy, possess, and control the same as Ms home, the same as he had that in which they were then living.”

This offer was objected to, and rejected by the court, and thereupon the plaintiff’s counsel asked the privilege of amending the complaint by inserting after “No. 347 Fourth street” the words, “and ever since the purchase thereof has been, and is now, in legal possession thereof under an agreement with his said wife.” Notwithstanding the elaborate argument addressed to us upon the main question by the learned counsel for the appellant, it is clear that under the decision of the court of appeals in this case no recovery could be had upon the complaint, and the offer of proof thereunder was, within the reasoning of the court of appeals, incompetent. But it is insisted that the trial court erred in refusing the application of the plaintiff to amend his complaint in the respect above stated. It is apparent that the proposed amendment was offered in order to meet the objection made by the court of appeals. Whether the same should or should not have been allowed under section 723 of the Code of Civil Procedure depended upon many circumstances. The appeal book contains no affidavit or other proof excusing the failure of the plaintiff to insert such an allegation in the original complaint. Though the plaintiff, upon this question, is entitled to the exercise of the discretion of the court at general term, yet, under the established practice, we should' not be justified in reversing a ruling made under the circumstances disclosed, unless some facts were laid before us excusing the failure to insert such an allegation originally; thus presenting some ground for the exercise of a judicial power. After a protracted and thorough litigation, such as this action has undergone, we think it will not suffice for the plaintiff merely to rise in court and ask for an amendment upon the trial of the character and controlling influence of the one proposed in this instance. It-follows that the judgment appealed from should be affirmed. All concur.  