
    Jacob Finkelstein, Respondent, v. Anna G. Huner, Appellant.
    
      The maintenance of a, leaky water closet which damages adjoining property constitutes a private nuisance—when a request to abate it or proof of knowledge is unnecessary.
    
    Where a person who, as the executor of and trustee under a will, owns and is in possession of certain premises, maintains upon such premises a leaky water closet, in consequence of which large quantities of water leak through the wall of an adjoining house, damaging it and subjecting the owner and tenants thereof to great annoyance and discomfort, the defective water closet const i- . tutes a private nuisance, and the owner of the adjoining premises is entitled to maintain an action in equity against the executor and trustee to restrain the further maintenance of such nuisance and to recover the damages sustained by him therefrom.
    
      In such an action it is not necessary for the plaintiff to prove a request to the defendant to abate the nuisance, nor, where it does not appear that the nuisance existed before the defendant became the owner of the premises, to show that the defendant had knowledge or notice of the existence of the nuisance before the action was brought.
    O’Brien and Laughlin, JJ., dissented.
    Appeal by the defendant, Anna Gr. Huner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of June, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, restraining the continuance of a nuisance upon the defendant’s premises.
    
      James A. Gray, for the appellant.
    
      Jacob Friedmcm, for the respondent.
   Patterson, J.:

The plaintiff is the owner of premises No. 43 Jefferson street in the borough of Manhattan, city of Hew York'. The defendant, as she states in her answer, is, as executor of and trustee under the will of Frederick Huner, deceased, the legal owner and in possession of the building and premises known as Ho. 41 Jefferson street and adjoining the plaintiff’s property. The plaintiff claimed and proved at the trial that the defendant maintained on her premises contiguous to the rear of the northerly wall of the plaintiff’s house a water closet, the cesspool of which was broken, rotten and leaky; that by reason of the improper and defective condition of the cesspool, large quantities of water leaked, and at the time the action was brought continued to leak, through the wall of the plaintiff’s building and into the basement thereof and made the wall “ weak, rotten, unsafe and dangerous,” so that it had to be taken down and another brick wall built, replastered and painted; that the floor of the basement of plaintiff’s building had been considerably damaged, and that by reason thereof such basement became unfit for business purposes, depreciated in rental value and was for a long time vacant, and plaintiff lost and will lose considerable rent; and that foul smells have been and are emitted from the water closet, to the great annoyance and discomfort of the plaintiff and his tenants who reside in the building aforesaid. The action was brought for an injunction to restrain the defendant from maintaining in its imperfect condition the cesspool upon her premises, and for damages for the injuries sustained by the plaintiff. The answer contains the admission of the defendant of the ownership above mentioned, denies upon information and belief plaintiff’s ownership of his premises, and also denies all the allegations in the complaint respecting the alleged maintenance of the imperfect cesspool and privy upon her property, and alleges that the plaintiff has an adequate remedy at law.

On the trial the evidence adduced was sufficient to authorize the court to make the decision that was made—in substance, that the allegations of the complaint were true; that the defendant did maintain upon her property the privy and cesspool in such a defective condition that the water from the cesspool leaked through the plaintiff’s wall and injured it and flowed into his premises, with the consequences alleged in the complaint. In addition to those findings, the court upon evidence ascertained and fixed the amount of the damage which the plaintiff sustained by reason of the wrongful and negligent maintenance by the defendant of the privy and cesspool in its defective condition. Upon the decision of the court, a final judgment was entered restraining the defendant from continuing to maintain the appurtenance to her property mentioned in its defective condition, and awarding the plaintiff a small sum of money for his damages.

The action, both for an injunction and the recovery of damages, is supported by what was held in Davis v. Niagara Falls Tower Co. (171 N. Y. 336). The right to the recovery of damages based upon the negligence of the defendant in maintaining the privy and cesspool in its improper condition so that damage occurred to the plaintiff, is supported by Holland House Co. v. Baird (169 N. Y. 136); Jutte v. Hughes (67 id. 267); Davis v. Niagara Falls Tower Co. (supra). The existence of the defective appurtenance to the defendant’s premises, under the circumstances disclosed in this record, amounted to a private nuisance. It was not necessary to prove a request to the defendant to abate it. (Conhocton Stone Road v. B., N. Y. & E. R. R. Co., 51 N. Y. 573.) The point of the defendant’s having knowledge or notice of. the existence of this nuisance before action brought is not involved in this case, for there is no evidence to show that the water closet and cesspool were a nuisance before the defendant became the owner of the premises. Notice is only necessary when the nuisance itself existed before the person sought to be charged with its continuance became the owner of the premises. (Conhocton Stone Road v. B., N. Y. & E. R. R. Co., supra.)

The judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., and McLaughlin, J., concurred; O’Brien and Laughlin, JJ., dissented.

O’Brien, J. (dissenting):

It has been repeatedly held where injury is caused by water overflowing another’s premises that a distinction is to be noted between cases where the defendant has constructed that which causes the damage and where he has come into possession of premises upon which it exists and thereafter maintains it. In other words, where one constructs the thing which does the injury, his knowledge of its existence will be imputed, but the same rule does not prevail with respect to one who merely uses what he receives as an appurtenance to the premises of which he enters into possession. In the latter case it is necessary either to prove knowledge of the existence of that which produces the injury or to prove notice, actual or constructive, before one can be charged with liability merely because he maintains it on his premises. (Ahern v. Steele, 115 N. Y. 203; Conhocton Stone Road v. B., N. Y. & E. R. R. Co., 51 id. 573; Schreiber v. Driving Club of New York, 17 Misc. Rep. 131.) The case first cited (Ahern v. Steele, supra) fully states the law and therein the authorities on the subject were collated, and the court said: “ The owner is responsible if he creates a nuisance and maintains it; if he creates a nuisance and then demises the land with the nuisance thereon although he is out of occupation ; if the nuisance was erected on the land by a prior owner or by a stranger and he knowingly maintains it; if he has demised premises and covenanted to keep them in repair and omits to repair and thus they become a nuisance; if he demises premises to be used as a nuisance or for a business or in a .way so that they will necessarily become a nuisance. In all such cases I believe there is now no dispute that the owner would be liable. * * * A grantee or devisee of premises upon which there is a nuisance at the time the title passes is not responsible for the nuisance until he has had notice thereof and in some cases until he has been requested to abate the same. The authorities to this effect are so numerous and uniform that the rule which they establish ought no longer to be open to question.” And in Conhocton Stone Road v. B., N. Y. & E. R. R. Co. (supra) it was held, as said in the head note, that In order to maintain an action for damages resulting from a nuisance upon defendant’s land, where such nuisance was erected by a previous owner before conveyance to defendant, it is necessary to show that before the commencement of the action he had notice or knowledge of the existence of the nuisance.”

The rule which has been formulated by the majority of the court may be more salutary and more just, but I do not feel at liberty, in view of the number of cases in which a different rule has been held, to divert from what I regard as the settled law. In recognition, therefore, of the principle of stare decisis, I dissent, and think that the judgment appealed from should be reversed and a new trial granted.

Laughlin, J., concurred.

Judgment affirmed, with costs.  