Ruckman v. Green , 16 N.Y. Sup. Ct. 225 ( 1876 )

Davis, P. J.:

It appears by the certificate of the clerk that exceptions in this case were ordered to b.e heard in the first instance at the General Term, and although an appeal seems to have been taken on the part of the plaintiff, from the order made by the judge in granting the nonsuit and dismissing the plaintiff’s complaint, yet that may be disregarded and the case treated as if here on the motion for new trial only.

It does not appear in the case on what ground the motion for non-suit was made and granted. The case fails to state, whether after the offer of the plaintiff of certain evidence was ruled out, other evidence was offered by the plaintiff. The plaintiff’s counsel claims, and that probably was the case, that the conrt excluded the evidence and granted the motion for nonsuit, on the ground of want of jurisdiction to try the action. It appeared that the defendant was the owner of and carried on a bone boiling establishment; that this establishment was situated at the foot of the palisades near the State line, between New York and New Jersey, but wholly in the State of New Jersey; that the plaintiff was the owner of a large tract of land contiguous to the establishment of defendant, part of which was situated in New Jersey, and part (being about 200 acres) in New York. Proof was given tending to show that noisome and noxious smells, produced by the business carried on at the defendant’s bone boiling establishment, were carried upon the plaintiff’s lands, and that such smells were sickening and offensive; and it was in substance offered to be shown that the plaintiff’s lands were by reason of such offensive smells greatly injured and depreciated in their market value; that the plaintiff was prevented from making sales thereof to the several persons mentioned in his complaint, and to others, as he might have done but for the nuisance complained of. We think the action can be maintained in this State for the injury done to the lands within the State, although the business of the defendant which occasioned the injury was situated in New Jersey; and that the learned judge erred if he held that the action was local, and could only be maintained in the State of New Jersey. The cause of action arises upon the injury suffered hy the complaining party, and so in respect to the lands situated in this State, the cause of action necessarily arose hero, although the nuisance which produced the injury was situated in another State. There is no sound principle, we think, which precludes a party whose property is specially injured by a nuisance which casts upon it offensive and noxious vapors from maintaining an action, because of the interposition of a State line between the nuisance and the property so injured; and if the injury is to be treated as one solely to the land, and therefore local in its character, we see no reason for holding that the party who commits the injury cannot be held liable in an action brought in the State where the land is situated.

It is well settled, that an action will lie for injuries of the character complained of in this case, at the suit of one who has sustained damages peculiar to himself, but it is claimed in this case that no action will lie because the premises were vacant lots unoccupied by any person living thereon. This fact we think is only a circumstance bearing upon the nature and extent of the damage. If the plaintiff had had tenants upon the premises occupying buildings situated thereon he could, according to the law as settled in Francis v. Schoellkopf (53 N. Y., 152), recover, as his measure of damages, “ the difference in the rental value free from the effects of the nuisance and subject to it.” (McKean v. See, 51 N. Y., 300.) In this case the plaintiff alleges that the offensive stenches had depreciated and lessened the productive, as well as the market value of his lands, and rendered them unsalable, unproductive, unwholesome and unfit for residence, occupation and habitation, and hindered and prevented him from deriving any revenue and profit therefrom, and from improving, selling or disposing of the same for building sites; and also as special damages, he further alleged that he had been thereby prevented from selling the lots to divers persons whom he specially names.

It may be more difficult in a case where the lots are unoccupied to ascertain strictly the measure of damages, but that fact goes to the extent of recovery, and not to the right to recover.

As we understand the offer made by the plaintiff in this case to prove damages, it was intended to show some proof of the particular injuries alleged in the complaint, for the purpose of enabling him to present to the court the question of his right to maintain the action.

The offer is very general, yet as the objection was to each and every part thereof, and as the court excluded each and every part of said offer, and the counsel duly excepted to the ruling, we think it would be unjust to apply to his case the strict and technical rule relied upon by the counsel for the defendant. It is obvious the court intended to exclude all evidence tending to show that plaintiff’s lots were injured and depreeiatéd in their market value by the alleged nuisance, and all evidence tending to show that he was prevented from making sales of the lands by reason of the nuisance. And as it would be competent in such an action to give evidence of that character, we think there is no difficulty in sufficiently pointing the exclusion and exception in this case to competent evidence, which might have been given under the offer.

We are of opinion that the motion for new trial should be granted, with costs to abide event.

DANIELS, J., concurred.

Motion for new trial granted, with costs to abide the event.