
    Jennie Hochstrasser, App’lt, v. George B. Martin and Alvin C. Eaton, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    1. Nuisance—Evidence—Decision of boabd of health.
    The decision and determination of a board of health upon an ex parte examination not in the presence of the defendants cannot bind or affect their interests, and is not competent evidence against them in an action to abate a nuisance.
    2. Same.
    Proof that a witness is a botanic physician, who has no license to prac tice, but had his medicines patented, is not sufficient to entitle him to testify as an expert that sickness was caused by the alleged nuisance.
    
      3. Same—Damage.
    While it is competent in such an action for the defendant to prove the rental value of plaintiffs premises as they were without the alleged nuisance, this should be done by showing the market value of their use, and not by the estimate that a witness may put upon the same for his own use.
    4. Same—Permitting—Charge.
    In such an action it is error to refuse to submit to the jury the question whether the defendants permitted their foul and refuse water to flow' on plaintiff’s laud. Permuting a nuisance to exist, which was caused by the person creating it, is a repetition of the nuisance.
    The plaintiff prosecuted this action for an alleged nuisance in maintaining and using a bam on the lands of the defendant Martin, occupied by the defendant Baton, from which the defendants caused or permitted water used by the defendants in washing wagons on the premises to leak through manure heaps suffered to accumulate thereon, over and above the premises of the plaintiff, causing offensive and unwholesome odors upon his premises and in his dwelling, and in the complaint asked that the defendants be enjoined and restrained from continuing such nuisance, and asked judgment for damages.
    The answer was in substance a denial, but admits the ownership and occupancy by the defendant of the premises, as set forth in the complaint, and alleges that the barn therein referred to has been upon such premises for over fifty years.
    On the trial the justice formulated two interrogatories which he submitted to the jury, both of which the jury answered in the negative. On which findings the defendants moved for judgment, and the court, adopting the findings of the jury, gave judgment for the defendants. The plaintiff moved for a new trial upon the minutes, which was denied, and now appeals from the judgment and order denying a motion for a new trial to this court.
    
      E. F. Bullard, for app’lt; John Foley, for resp’ts.
   Mayham, J.

The appellant insists that the judgment should be reversed on the ground of the rejection of evidence offered by the plaintiff on the trial..

The plaintiff’s husband, while being examined, testified that be made complaint to the board of health. He was then asked this question : “ What did the board decide in regard to it ? ” This question was objected to by the defendants, and before any ruling was made by the court the plaintiff made the following offer: Plaintiff offered to prove that the health officer refused to interfere and stated that the public had nothing to do with it, as it was a matter of private damage.

The court sustained the objection and excluded the evidence, to which plaintiff duly excepted.

We see no error in this ruling by the court. The decision and determination of the board of health upon an ex parte examination not in thé presence of the defendants could not bind them or affect their interests and was not competent evidence against them.

It could neither confer a right of action upon the plaintiff nor deprive the defendant of any ground of defence and when objected to by the defendants was properly excluded.

bTor do we see that it was error for the court to exclude the opinion of this witness as to the cause of the illness of his son. It-was objected to on the ground that that inquiry was not within the questions raised by the pleadings and not proper on the question of damages, and also that the witness was not competent to give the opinion asked for.

We think the objection well taken on the latter ground. There was an allegation of special damages for sickness of the plaintiff’s son, under which proof, if competent in other respects, might have been admissible. But there is no proof in this case that the witness was qualified to give the opinion called for by the question. The only evidence of the qualification of the witness to give the opinion asked for was his statement that he was a botanic physician, that he had no license to practice but had his medicines patented,- and had a right to sell it anywhere.

That evidence does not show, or tend to show, that the witness had any special knowledge in reference to the causes of disease. After proving, as above indicated, all of the knowledge, or sources of knowledge, of the witness bearing upon his skill as an expert, the plaintiff asked this question : “ In your judgment would such a smell in your yard, as it was at the time your son was taken sick, have a tendency to produce such a sickness?” This question was objected to by the defendant on the ground, among others, that witness was not competent, and that objection was sustained, as we think, correctly, for the reasons above stated.

The plaintiff also objected to evidence tending to prove the condition of the plaintiff’s premises. The witness Waterbuvy was permitted to answer, under the plaintiff’s objection, that on account of the filthy condition of the plaintiff’s henyard on plaintiff’s premises he would not live there if it was given to him. The precise question, in answer to which this evidence was given, does not appear, but we are left to the inference that it was testimony called for by some appropriate inquiry, especially as the answer was not disclaimed by the defendant, but the testimony retained after objection by the plaintiff, which the case shows was taken in due time.

The defendant insists that the evidence was harmless, especially as it was the manner adopted by the witness in expressing his estimate of the rental value of the plaintiff’s premises without the existence or effect of the alleged acts or omissions of the defendant. We cannot agree with the defendant in this conclusion. It was, doubtless, competent for the defendant to prove the rental value of the plaintiff’s premises as they were without the alleged injury to them by acts or omissions of the defendant. But it should have been done, if at all, by competent evidence. The rental value of premises may be estimated by a witness and testified to, but it must be the market or merchantable value of the use of the premises arid not the estimate that the witness may put upon the same for his own use.

To the individual witness who may have no use for the article, the value of which he is asked to estimate, it may be valueless, while in the general market it may be valuable, and hence the inquiry always is confined to market value. The inquiry upon this subject should have been confined to the rental value with and without the alleged nuisance, and that should be estimated by what it would rent for, and not by the estimate that the witness would put'upon it for his own use. Francis v. Schoellkopf, 53 N. Y., 152 ; Van Buren v. Water Works Co., 50 Hun, 448 ; 21 St. Rep., 438; Barrick v. Schifferdecker, 48 Hun, 355; 16 St. Rep., 449.

The appellant also insists that the learned trial court erred in not submitting to the jury after the word “ caused ” in his second proposed question for the jury the words “ or permitted ” upon the request by the plaintiff, which the court refused, and to which refusal the counsel for the plaintiff excepted.

If the amendment proposed by the plaintiff’s counsel had been adopted by the court the question would have read as follows : “ Did the defendants by any improper or unreasonable use of their barn lot cause or permit foul or refuse water drainage to flow on plaintiff’s land so as to depreciate its value ?” If the defendants by any improper or unreasonable use of their barn lot permitted the refuse water drainage to flow on plaintiff’s land so as to depreciate its value, it is difficult to see why they would not be liable. Permitting a nuisance to exist which was caused by the person creating it is a repetition of the nuisance. In Brown v. Cayuga & Susquehanna R. R. Co., 12 N. Y., 492, Denio, J., says: Every continuance of a nuisance is in judgment of law a fresh nuisance.” But in this case, under the question as submitted and from the charge of the learned judge, the jury might well have inferred that the continuance of the conditions injurious to the plaintiff furnished no ground of action, and unless they found that the defendants caused it the plaintiff was remediless. This, we think, was restricting the inquiry of the jury within too narrow limits, and the court in adopting the findings of the jury must be held to have been restricted in the same manner. In the case above quoted the same learned judge added: “But I am of opinion that an action on the case will lie against one who continues a nuisance by which damage is occasioned to the plaintiff without notice first given to remove it.”

In this case some question was raised as to the exercise of the equitable power of the court to compel a defendant to abate a nuisance without a request made to abate the same. But no such question can arise in the case at bar, as the uncontradicted evidence is that a request was made of both defendants before the commencement of the action to abate the alleged nuisance. We are of opinion that the error referred to in the admission of evidence and the erroneous refusal of the learned judge to submit to the jury the question as to whether or not the defendants permitted the existence of the alleged nuisance may have improperly prejudiced the rights of the plaintiff, and that for these reasons the judgment should be reversed.

Judgment reversed and a new trial ordered, costs to abide event.

Learned, P. J., and Landon, J., concur.  