
    Michael Kavanagh, Resp’t, v. A. L. Barber, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 1, 1892.)
    
    1. Nuisance.
    Plaintiff and his family had, for fourteen.years, occupied a house owned by his wife. Defendant erected a building opposite for the manufacture of paving and roofing materials, the fumes arising from the asphalt penetrating the house and subjecting plaintiff and his family to great annoyance and discomfort." The husband supported the family.' Held, that a private action could not be 'maintained by the husband for the discomfort caused by the offensive vapors.
    2. Same—Parties.
    No private action can be maintained for corruption of the air by offensive odors, except by a plaintiff who is the owner of, or has some legal interest as lessee or otherwise in land, the enjoyment of which is affected by the nuisance.
    
      Appeal from judgment of the supreme court, general term, fifth department, affirming judgment for plaintiff entered on verdict of jury.
    
      Sheldon T. Vide, for app’lt; S. 0. Day, for resp’t.
    
      
       Reversing 35 St. Rep., 430.
    
   Andrews, J.

The trial judge instructed the jury that if they found that vapors arising from the manufactory of the defendant constituted a nuisance, the plaintiff was entitled to recover to the extent of the damages sustained. by him in the diminished enjoyment of the premises he occupied. The evidence justified a finding that the fumes arising from the asphalt penetrated the house and subjected the plaintiff and his family to great annoyance and discomfort. The' air of the neighborhood was- tainted with the odor, and there is some evidence that the plaintiff’s wife and daughter became ill in consequence. The main damage, however,. sustained by the plaintiff, according to the proof, was in the personal discomfort to which he was subjected in the occupation of the house. The case in its legal aspects is novel.

The house was owned by - the plaintiff’s wife and had been occupied for fourteen years b/*the plaintiff and his family, and was so occupied when the manufactory of the defendant was built. The plaintiff, so far as appears, had no lease 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 riot 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 maintairied by the husband for the discomfort caused by the offensive vapors. We find no precedent for such an action by a person so situated.

Mr. Justice Blackstone defines a private nuisance to be “ anything done to the hurt and annoyance of the lands, -tenements or hereditaments of another,” which definition as said by Judge Cooley, Cooley on Torts, 565, embraces not a mere physical injury to the realty, but any injury to the owner or possessor as respects his dealing with, possessing or enjoying it

Interferences with public and common rights, creating a public nuisance, when accompanied with special damage to the owner of lands, also gives a right of private action. The public nuisance as to the person who is specially injured' thereby in the: enjoyment or value of his lands becomes a private nuisance also. Upon the evidence in this case on the part of the. plaintiff the defendant maintained a public fariisance. The air of the neighborhood was for a long distance infected with the disagreeable odor of the asphalt and rendered residence within the area uncomfortable and life therein less enjoyable. Upon these facts the plaintiff's wife, who owned and lived in the premises, sustained an actionable injury. Mills v. Richards, 9 Wend., 315; Francis v. Schoellkopf, 53 N. Y., 152.

The trial judge charged the jury that the plaintiff could not re•cover for any injury to the premises, or for diminished rental value, for the reason that the title was in the wife. But the wife, who both owned and occupied the realty, had her action for damages for the special injury, in being deprived of the reasonable enjoyment of her property as her dwelling by reason of the nuisance.

The judgment in this case adjudges that the husband also can maintain an action fpr the interference with his enjoyment of the premises. The principle upon which the judgment proceeds, if •sustained, will greatly extend the class of actionable nuisances. We have found no case where a private action has been maintained for corruption of the air by offensive odors, except by a plaintiff who was the owner of or had some legal interest, as les.-see or otherwise, in land, the enjoyment of which was affected by the nuisance. The cases ate numerous of actions on the case for nuisance created by a noxious trade, producing offensive and noisome odors, smoke or noises, but from the case of Morley v. Pragnell, Cro. Car., 510, down, they have been brought and maintained (so ■far as we can discover) by the owner or lessee of the realty affected ■by them. See Wood on Nuisances, 577.

We perceive no legal distinction betwen the plaintiff’s situation and that of a lodger or guest in the house, or why, if the plaintiff can maintain an action, each member of the household cannot maintain one likewise for her or his separate injury of the samé kind. The plaintiff’s situation appeals more strongly per.haps than the others for an extension of the rule as heretofore understood. But there was a public remedy open to him by public prosecution, and we think the public interests would not be subserved by opening the door to actions of this character, where the claimant has no property right to be protected from Infringement

The language of Chief Justice Shaw in Quincy Canal Co. v. Jiewcomb, 7 Met, 276, is appropriate here. “He cannot have an .•action because it would lead to such a multiplicity of suits' ais to be itself an intolerable evil.”

We think the judgment is erroneous.

Judgment reversed, and new trial granted, costs to abide •event

All concur, except Maynard, J., absent.  