Citation Numbers: 98 N.J.L. 304
Judges: Gummere
Filed Date: 4/3/1923
Status: Precedential
Modified Date: 9/9/2022
The opinion of the court was delivered by
The present suit was brought by the board of health of the borough of Oaklyn to recover the cost of abating a nuisance existing upon the premises of the defendant, Bulofson. The trial resulted in a verdict in favor of the plaintiff, and the defendant has appealed.
The cause of action is thus set out in the complaint: That in June, 1919, and prior thereto, a nuisance existed upon the property of the defendant, in the borough of Oaklyn; that due notice to abate the same was given to the defendant, Suit he refused to abate or remove the same within the time limited in said notice; and that thereupon plaintiff proceeded to abate and remove that said nuisance, in accordance with the statute in such case made and provided, and thereby incurred an expense of $5C6.2o for plumbing, which defendant lias never paid.
The answer of the defendant was a general denial of the charges contained in the complaint.
The proof offered on behalf of the plaintiff in support of the case made in its complaint was that in 1917 an ordinance was adopted by it, requiring property owners along the line of an existing sanitary sewer, which had been constructed in the borough of Oaklyn, to immediately connect their several premises with that sewer, and that, upon failure to do so, upon receiving notice, the work of connection to be made bv the board at the expense of the property owners; that in 1919. it having been ascertained that the defendant had not made the connection required by the ordinance, an inspection of his property was made by certain members of the board; that from their inspection they determined that his premises were in such an unsanitary condition as to constitute a public
was admitted that both the inspection by the members of the board and the subsequent action of the board itself in adjudging that a nuisance existed upon the defendant’s premises were had without notice to him and without an opportunity afforded to him of being heard upon the question whether or not such nuisance in fact existed.
In addition to these proofs, there was evidence offered on behalf of the board that at the time of the passing of its resolution the defendant’s premises were in am unsanitary condition, due to his failure to take proper care of sewage. This fact, however, was controverted by testimony offered on behalf of the defendant.
At the close of the testimony the trial court charged the jury that the only question for their determination was whether the defendant was notified by the board to connect isgswith the sewer which had been installed in front thereof^mndEhiTFSI^I^ and failed to comply witE-ihedirection of the board, the action of the-latter in mSnrLg~~fee3o™^Tim~wm-4egaEYYñsS3ñd7and that it was entitled to recovePffTimrdHm^fee-^ea^ottirbte^ost" of doing so.
'Eh&_verdict in favor of the plaintiff, based unon-thi-s-instrucSMT'The raal-nuestjon upon wMch^h^-pkintiff’s rig£tj&_ issua_jaised bytKe pleadings, was whether or not a public. miisan^ñfiñ3aPf^lsTedEip5nTEe~3ñfa¿^ñt’s premises at the, time-the notice~to abate was served. If PopffiiñFiñdthen onlYr-dhlthe question become material whether the plait waF~1iwaIhi--justified. under the authority conferred upon it premiseg bv'^5te-degisfe#a5eT witE-thejoublic sewer at his expense. The primary question
From what has already been stated, it is apparent, therefore, that the finding of the jury was based altogether upon the determination of a question which was not within the issue raised by the pleadings; and it is entirely settled that the defendant is only required to meet the case laid against him in the plaintiff’s complaint. If he does that, and shows by a preponderance of the evidence that the charge against him is not justified by the fact, he has relieved himself from responsibility so far as the action then being tried is concerned. Excelsior Electric Co. v. Sweet, 59 N. J. L. 441; Murphy v. North Jersey Street Railway Co., 71 Id. 5. The defendant, in thejnnseniLCMik.SÍÍfilTEtedMo ineet^t^ charge laidfdB^tasSmpiaintJDyu£viden^e_ thatpa nuisance did. not in faeiL.exist-ah-fhe-timeuvhenthe-boariiMoQk-the-aetioB^-which has been-above-reerted: — ~He„3yas entitled to the finding of the jury upon the question whether or not he had shown by a preponderance of the evidence that this charge was contrary to
The judgment under review will be reversed.