
    Morris Friedman, Appellant, v. Columbia Machine Works and Malleable Iron Company, Respondent.
    
      Action to abate a, nuisance—defenses, that the business was lawful and, was rightfully carried on in a proper place; that the defendant was able to respond in damages at law, and that the plaintiff purchased the property alleged to be injured for the purpose of compelling the defendant to purchase it, are demurrable.
    
    The complaint in an action alleged that since November 6,1902, the plaintiff had been the owner and occupant of a certain dwelling house; that the defendant owned and operated certain iron works in the vicinity, and that since the date mentioned it had operated in such works four steam hammers, the blows from which jarred the dwelling house; that the said works had been operated in such a manner as to cause smoke, fumes and soot to come from said works into the dwelling house; that such jarring, smoke, fumes, etc., had materially impaired the enjoyment of the plaintiff's premises.
    The relief demanded was that the defendant be enjoined from operating the said steam hammers in such manner as to jar the dwelling house, and from operating its works in such manner as to cause smoke, fumes or soot to come therefrom into plaintiff’s dwelling house, and that the plaintiff recover the sum of $1,000.
    The defendant interposed an answer setting up;
    As a first defense that “the defendant’s business or works is lawful and is a great benefit, utility and convenience to the public, and is rightfully carried on in a proper, suitable and convenient place, and in a careful and orderly manner, and in the best and most improved manner.”
    As a second defense that it was “amply able to respond in damages, and that the plaintiff has an adequate remedy at law; ” and
    As a partial defense that the plaintiff, with a full knowledge of the defendant’s works, etc., and a long time after such works were constructed and operated by the defendant, purchased the said premises mentioned in the complaint for the purpose of compelling the defendant to purchase the same from the plaintiff at an advanced and increased price.
    
      Meld, that the first and second separate defenses and the partial defense were all demurrable.
    Appeal by the plaintiff, Morris Friedman, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 14th day of November, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the plaintiff’s demurrer to two defenses and a partial defense set up in defendant’s answer.
    
      Richard Krause, for the appellant.
    
      Fred L. Gross [Albert Hutton with him on the brief], for the respondent.
   Woodward, J.:

The complaint in this action alleges that the defendant is a domestic corporation; that the plaintiff is the owner and occupant of a certain dwelling house and its curtilage in the city of New York, and that he has been such owner and occupant since November 6, 1902; that the defendant owns and operates and has owned and operated certain iron works since the above date; that the defendant, since the date mentioned, has owned and operated four 1 steam hammers the blows from which jar the said dwelling house and its curtilage, and that the said works have been operated in such a manner as to cause smoke, fumes and soot to come from said works into the said dwelling house and upon its curtilage ; that said jarring, smoke, fumes, etc., have been materially impairing the enjoyment of the said premises, etc., and the plaintiff demands judgment against the defendant, enjoining it from operating the said steam hammers in such manner as to jar the said dwelling house or its curtilage, and from operating the said works in such manner as to cause smoke, fumes or soot to come therefrom into the said dwelling house, etc., and that the plaintiff recover the sum of $1,000. These facts, if established on the trial, would undoubtedly constitute a nuisance. (Roscoe Lumber Co. v. Standard Silica Co., 62 App. Div. 421, 422, and authority there cited.) The defendant answering denies all the allegations going to the essence of the cause of action, and sets up “for a first separate and distinct defense thereto ” that “ the defendant’s business or works is lawful and is a great benefit, utility and convenience to the public, and is rightfully carried on in a proper, suitable and convenient place, and in a careful and orderly manner, and in the best and most improved manner.” For a second separate and distinct defense thereto the defendant alleges “ that it is amply able to respond in damages, and that the plaintiff has an adequate remedy at law.” As a partial defense the defendant sets forth in substance that the plaintiff, with a full knowledge of the defendant’s works, etc., and a long time after such works were constructed and operated by the defendant, purchased the said premises mentioned in the complaint, for the purpose of compelling the defendant to purchase the same from the plaintiff at an advanced and increased price.

The plaintiff demurred generally to these two defenses and to the partial defense, and the learned court at Special Term held that the demurrer as to the first defense and as to the partial defense was good, but held that as the demurrer was general, and the second defense was sufficient in law, the same must be overruled. We are convinced that the court was correct in its view of the first defense and the partial defense and the only question to be determined here is whether the defense that the defendant is “ amply able to respond in damages, and that the plaintiff has an adequate remedy at law,” is a good defense to the cause of action set out in the complaint. While the complaint does not allege in direct language that the defendant intends to continue to operate its plant in such a manner as to constitute a nuisance, the prayer for relief assumes this, and the attitude of the defendant in its answer is that it has a right to continue as it has been doing. The action is, therefore, one of equitable cognizance, as it is a well-recognized principle of equity jurisprudence that a continuing trespass gives ground for injunctive relief, to prevent a multiplicity of actions. If the defendant’s plant, with its mode of operation, constitutes a nuisance, it gives rise to a new cause of action each day that it is so operated, and the recovery of daily damages is not an adequate remedy for one whose rights of property are continually invaded. The complaint being purely of an equitable nature, and in which only equitable relief can be afforded, a defense that the plaintiff has an adequate remedy at law is insufficient and its insufficiency can be raised by demurrer. (Edmonds v. Stern, 89 App. Div. 539, 540.)

The interlocutory judgment should be modified, with costs, and the demurrer sustained, without costs.

All concurred.

Interlocutory judgment modified in accordance with opinion of Woodward, J., and as modified affirmed, without costs.  