
    Michael Kavanagh, App'lt, v. Amzi L. Barber, Resp't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Nuisance—Parties—Evidence.
    The court of appeals reversed a former judgment in favor of plaintiff, on the ground that he could not maintain' an action for nuisance on account of disagreeable odors, which caused annoyance and discomfort to himself and family, in a house owned by his wife. On the new trial, he offered evidence to show that he furnished the money to buy the house, the title to which was taken in the wife’s name, and occupied it under an agreement with her that he might occupy it, as a home for himself and children as long as he lived, and that he paid the taxes and repairs. Held, that under the decision of the court of appeals no recovery could be had on the complaint, and the evidence offered was incompetent.
    2. Same—Pleading—Amendment.
    Plaintiff asked for an amendment to the complaint by adding an allegation that he was in legal possession of the premises under an agreement with his wife. Held, that in the absence of proof of facts excusing1 his failure to insert such an allegation originally, the order denying such amendment should not be reversed.
    Appeal by the plaintiff, Michael Kavanagh, from a judgment entered in Brie county, May 5, 1892, upon a nonsuit directed at the Brie circuit.
    
      H. C. Day, for app’lt; Sheldon T. Viele and Clinton Spencer, for resp’t.
   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; 35 St. Rep., 430; but was reversed by the court of appeals in a decision reported in 131 N. Y., 211; 43 St. Rep., 283.

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: “ The house was owned by the plaintiff’s wife and had been occupied for fourteen years by the plaintiff and his family, and was so occupied when the manufactory of the defendant was built. The plaintiff, so far as appears, hasnolien or other interest 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. 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 of1 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 his 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 ownqd by his wife, and occupied by her and the family, but his present wife continued to live with him in his former residence until they removed, with the children, 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 4th street, and has ever since occupied, possessed and controlled the same, paying all the taxes assessed thereon, and paying for all the repairs and improvements which have since been made thereto; that he, the said plaintiff, has ever since the purchase of said premises, No. 347 4th street, and the building of said house thereon, occupied, possessed and controlled the same under an agreement made by him with his said wife when said premises were first purchased and paid for by him, and the title thereto taken in the name of his said wife, that he, the said plaintiff, with his said children, might occupy the same as a home for himself and his children so long as he lived, and that he might occupy, possess and control the same as his 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 4th 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 § 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.

Judgment appealed from affirmed.

Dwight, P. J., Lewis and Haight, JJ., concur.  