
    SUPREME COURT—APP. DIVISION—SECOND DEPARTMENT,
    May 14, 1915.
    THE PEOPLE v. INTERNATIONAL NICKEL COMPANY.
    (168 App. Div. 245.)
    (1.) Public nuisance—Deleterious fumes arising from manufacturing PLANT SITUATED IN FOREIGN STATE.
    A foreign corporation, conducting an industrial plant in an adjoining State cannot be indicted in this State for maintaining a public nuisance in violation of the Penal Law, because deleterious fumes, gases and odors, emitted from its plant, are carried into this State to the alleged impairment of the health of our citizens.
    (2.) Same—Jurisdiction.
    The fact that said fumes are carried by the wind inte this State does not constitute a nuisance within this State so as to render the defendant amenable to our statutes. It is the misuse of the plant itself that is the nuisance, and that can only be attacked in the State where the plant is situated.
    Appeal by the plaintiff, The People of the State of New York, from an order and judgment of the County Court of Richmond county, entered in the office of the clerk of said county on the 10th day of September, 1914, sustaining a demurrer to an indictment found against the defendant.
    
      William Allaire Shortt [Albert C. Fach, District Attorney, with him on the brief], for the appellant.
    
      Francis D. Pollak [ John Foster Dulles and George M. Pinney with him on the brief], for the respondent.
   Putnam, J.:

Defendant has been indicted by the grand jury of Richmond county for maintaining a public nuisance in violation of section 1530 of the Penal Law, in operating an industrial plant in Bayonne, N. J., in such manner that fumes, gases and odors, of a deleterious character escaped from said plant, and were carried by the wind into and upon Richmond county, whereby the health of a considerable number of persons in Richmond county was endangered and injured.

Defendant, a New Jersey corporation, demurred on the ground that the grand jury of Richmond county was without, jurisdiction, which demurrer has been sustained.

Our Code of Criminal Procedure (§ 284, subd. 4) requires that it appear from the indictment that the offense was committed at some place within the jurisdiction of the court, with certain exceptions, none of which are applicable here. We, are, however, referred to section 1930, subdivision 5, of the Penal Law, by which our courts may punish criminally: “ A person-who, being out of the State and with intent to cause within it. a result contrary to the laws of this State does an act which in its natural and usual course results in an act or effect contrary to its laws.”

This makes intent essential. But this indictment does not charge that defendant acted with intent to cause a result in this State contrary to its laws.

The prosecution urges that this nuisance is not confined to-defendant’s New Jersey plant, but that the nuisance actually consists in the fumes and smoke that come from it and are-blown into Richmond county, so that the nuisance was there a. subject of indictment.

Generally, any act, omission or use of property, which results in polluting the atmosphere with noxious or offensive odors, thereby producing material physical discomfort and annoyance to person or property is a nuisance. The odors: ana smoke complained of are charged to come from the defendant’s plant in the State of New Jersey.

It is the maintenance of the thing itself, the misuse of the plant, that is the nuisance. The noxious matters given off as a result of its operation are the evidences and effects of the nuisance. (People v. Central R. R. Co. of N. J., 42 N. Y. 283; State v. Babcock, 30 N. J. L. 29; Matter of Eldred, 46 Wis. 530.)

The situs of this nuisance is in another State. While the results of the nuisance may affect the inhabitants of this State, criminal redress against the defendant will have to be sought in the courts of the State of New Jersey, where the nuisance is, or, at the suit of the State of New York in the capacity of quasi-sovereign, in a controversy justifiable in the Supreme Court of the United States. (Georgia v. Tennessee Copper Co., 206 U. S. 230.)

As the grand jury of Richmond county had not jurisdiction to find the indictment, the order and judgment of the County Court is affirmed.

Jenks, P. J., Cabe and Stapleton, JJ., concurred.

The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Order and judgment of the County Court of Richmond county affirmed.  