Village of White Plains v. Tarrytown, White Plains & Mamaroneck Railway Co. , 102 N.Y.S. 1046 ( 1907 )

Gaynor, J.:

This suit is properly brought in the name of the village instead of in that of the board of health (Board of Health v. Magill, 17 App. Div. 249) ; but the complaint does not state facts sufficient. Section 21 of the Public Health Law empowers local-boards of health to make and publish general orders and regulations for the preservation of life and health, and also orders and regulations not of general application for the suppression of particular nuisances, and to maintain suits in the name of the municipality to restrain by injunction violations of such'orders and regulations and to enforce the same. The complaint alleges that the board of health of the village after a hearing to the defendant passed a. resolution declaring the vibrations of its engines and: dynamos in its electrical power house a nuisance and a cause of danger and' detrimental to the health, of a large number of inhabitants of the village, and ordering it abated; that a copy thereof was served on the defendant, and a demand made o'f it by the.board to comply therewith, but it refused. °

There is then an allegation that the said vibrations are a nuisance and a cause of danger and detrimental to the health of a large number of the inhabitants of the village; but there is no allegation of any noise or jar therefrom, much less of any extending beyond the power house. Ho fact is alleged to show a nuisance. ' The complaint is framed on the theory that it is enough to allege and on the trial prove that the board of health has declared a nuisance and ordered -it abated. This is erroneous. Its resolution and order were in no sense an adjudication (People ex rel. Copcutt y. Board of Health, 140 N. Y. 1). The complaint must allege facts constituting a-nuisance, and such resolution and order áre not evidence thereof.

The judgment should be reversed and the demurrer sustained with leave, to the plaintiff to plead over.

Hirsohbérg, P. J., Woodward, Rich and Miller, JJ., concurred. \

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plead over on payment. *