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be taken whether the claim was transferred to the wife; and, if there be no such proof given, then the administratrix should be directed to account for it as an asset. No costs to either party on this appeal. All concur.

(71 Hun, 149.)

(Supreme Court, General Term, Second Department. July 28, 1893.) 1. NUISANCES—ABATEMENT.

A mill pond which, by the collection of foul matter, becomes a nuisance

endangering the health of the public, may be discontinued. 2. BOARD OF HEALTH-ACTIONS.

Laws 1881, c. 184, tit. 9, § 2, empowers the board of health of the city of Y. to suppress nuisances detrimental to public health, to establish a sanitary code, and pass all ordinances and resolutions necessary to carry into effect its powers, and to enforce its code, ordinances, and resolutions by imposition of penalties for their violation, and to maintain actions for the penalties, and to restrain by injunction such violations. Held, that the board could maintain an action for a penalty and injunction against one who maintained a dam, thereby creating a mill pond which collected foul matter endangering public health, it being declared by one section of the board's code that anything dangerous to public health was a nuisance, and that one who supported it was guilty of violating the section, and a penalty being prescribed by another section for any violation of the code or any ordinance or resolution of


Where the board, without any notice to the persons to be affected, passed a resolution requiring the removal of the dam, a penalty for disobedience of the resolution cannot be enforced. SAME.

A penalty could be collected for violation of a resolution of the board prohibiting the rebuilding of the dam.

Appeal from special term, Westchester county.

Action by the board of health of the city of Yonkers against John Copcutt to enjoin the maintenance of a dam and to recover certain penalties. Judgment for plaintiff. Defendant appeals. Modified.

The following iş the opinion of Mr. Justice DYKMAN at special term:

The testimony in this action discloses the existence of an intolerable nui. sance in the city of Yonkers. In the heart of that city of 30,000 inhabitants, enpironed by dwellings in close proximity to its shore, the defendant in this action has for niany years maintained a mill pond, whose bed is covered to the depth of seven feet with foul sediment, impregnated with offscourings and putrid substances, covered at times with polluted water, and at times bare, giving off noxious, offensive, and sickening odors, which endangered the lives and health of the people. This action is brought to secure the abolition of the nuisance, and it will be a reproach to the law if its object cannot be accomplished.

While it is true that the complaint contains counts upon by-laws for the recovery of penalties, yet the great and paramount object of the action is as already stated. It may be observed, however, that by-laws of corporations and boards, made under authority of the legislature, in conformity to the power delegated, have the same force as legislative enactments. McDermott—40

V. Board of Police, 25 Barb. 635. Their history is briefly this: Where the Danes acquired possession of a shire in England, the township was often called a "by,” and as they enacted laws of their own they were called by. laws or town laws. In modern times the term is employed to denote the private laws of corporations or other boards of bodies. As the powers of the board of health are derivative and limited, it is important to ascertain at the outset whether the plaintiff is acting within the scope of its authority. Section 1 of title 9 of the charter of the city of Yonkers, which was passed in May, 1881, provided for the organization of a board of health. Section 2 authorizes the board, among other things, to suppress, abate, and remove any public nuisance detrimental to the public health, to ordain a sanitary code and all ordinances necessary to carry into effect the powers of the board, and to enforce observance of its sanitary code and by-laws by the imposition of penalties for their violation, and to maintain actions in any court of competent jurisdiction, in the name of the board of health of the city, to recover such penalties and to restrain by injunctions such violations, or both. In addition to the powers expressly granted therein, the board is to have and exercise all the powers then and at any time thereafter conferred upon boards of health in cities by any general law. By the provisions of subdivision 4 of section 3 of chapter 270 of the Laws of 1885, passed in May, 1885, which is an act for the preservation of the public health, the several boards of health then organized in any city, village, or town in this state, except New York, Brooklyn, and Buffalo, were clothed with power, and it was made their duty, to order the suppression and removal of nuisances and conditions detrimental to life and health, found to exist within the limits of its jurisdiction. Subdivision 9 of section 3 is as follows: "To impose penalties for the violation of or noncompliance with their orders and regulations, and to maintain actions in any court of competent jurisdiction, to collect such penalties not exceeding one hundred dollars in any one case, or to restrain by injunction such violations, or otherwise to enforce such orders and regulations." These provisions, therefore, supplement the city charter act, and with it confer the most ample power in all cases where necessity requires action and the subject falls within the jurisdiction of the board of health. The power to maintain actions for penalties, and to restrain by injunction the violation of ordinances, is sufficiently comprehensive to justify this action, and the same facts which establish a violation of the by-laws and the sanitary code will justify a perinanent injunction.

It has already been said that the evidence is sufficient to establish the existence of an insufferable nuisance upon the land of the defendant, which is maintained by him. It is equally plain that the nuisance is detrimental to the public health, and requires heroic treatment. Unlike the case of a business which is a nuisance, and which may be suppressed by the discon. tinuance of the cause without the destruction of the property, the nuisance in this case inheres in the property. The pond itself is the nuisance, and the abolition of the one is essential to the enactment of the other. The evil is radical, and cannot be eradicated without the discontinuance of the pond. Actions of this kind, in which similar relief is administered, are by no means infrequent, and are based upon the maxim which requires all persons to so use their own property as not to injure others. The maxim embodies both a legal and ethical principle of universal applicability. It lies at the foundation of the police power of the state, which is exerted to prohibit any use of property in a densely populated community which is a nuisance detrimental to public health. It is sufficient to justify the destruction as well as the regulation of the use of property dangercus to health and life. All property is held upon the condition that its use shall not be detrimental to the public. The private interests in individual rights of the defendant, like those of all other persons, are not absolute, and must yield to the public welfare. Actions of this character in favor of private individuals who have sustained peculiar injuries from nuisances are not infrequent in this state, and the courts have gone far in the administration of complete relief. Adams v. Popham, 76 N. Y. 410, was an action to restrain a nuisance, and was quite similar to this, except that the case was less aggravating. The facts were

these: The defendant had constructed a dam across a small stream of water running through bis own land, and then created a pond of water near the dwelling house of the plaintiff. As the water collected it became stagnant, the bed of the popd was covered with sediment, and from the sides thereof, as they became bare and exposed to the sun, there arose noxious and poisonous effluvia and malaria, which tainted and poisoned the atmosphere. Such exhalation reached the dwelling house of the plaintiff, rendering it dangerous to life and health. The family of the plaintift was made sick thereby, and she sustained special injury from the nuisance. The trial court rendered a judgment for the plaintiff, perpetually enjoining the defendant from maintaining and continuing the dain and pond; that the defendant be enjoined to renove all obstructions of the running of the water in the stream, so that the water might run in the same manner it did before any dam was made thereon; and, further, that the defendant be restrained from maintaining the pond, by means of a dam or otherwise, or doing any act whereby the stream should be prevented from flowing as it was wont to do. That judgment was affirmed both by the general term and the court of appeals, and in the latter court it was said. "The person may enjoy his own property in any lawful manner, but may not do so to the injury of others." Such are the principles and such the authority upon which my decision is based. Other authorities there are, but their citation is deemed unnecessary. They are all in unison. Slaughter houses, fat boilers, and all similar nuisances have been driven back before the advance of population, and the courts have been ever ready 10 comrel them to recede. The individual consequences have frequently been severe. They will be so here, and that knowledge has induced an unusually careful consideration of this case. Yet it presents a great evil, for which the law has a remedy that must be administered. A nuisance detrimental to life and health inust not be permitted in a great city. Judgmeut must be rendered in favor of the plaintiff for the relief demanded in the complaint. That will abolish one pond, but there will be no complete relief until the entire chain of ponds is abolished, and the stream permitted to flow in its natural course, without a place for the secretion and accumulatiou of deleterious or noxious matter.

Argued before BARNARD, P. J., and PRATT, J.

R. E. & A. J. Prime & Burns, (R. E. Prime and Calvin Frost, of counsel,) for appellant.

James M. Hunt, for respondent.

out a jury.

and we

PRATT, J. This is an appeal by defendant from a judgment of the Westchester special term after a trial before a judge with

The action was brought by the board of health directly pursuant to section 2, tit. 9, c. 184, Laws 1881, to enforce obedience to its requirements. Several important questions are raised by this appeal, but the facts are not open to much discussion, as there is no certificate that the case contains all the evidence,

must therefore assume that the findings are supported by the proofs. Neither is it necessary to discuss the principles upon which the judgment is founded, as that subject was fully discussed in the opinion rendered at the special term. But, even assuming that the appeal book contains all the testimony, it is established to a reasonable certainty that the pond in question

intolerable nuisance, and dangerous to life and health, and the fact that others besides the defendant contributed to it, and even the city of Yonkers itself, by discharging sewer matter into it, does not relieve the defendant from responsibility for its condition, for it was his act in maintaining the dam that kept the

was an

foul substance confined in the pond. Neither is it any excuse for the defendant that others guilty of creating or maintaining a nuisance have not been prosecuted.

The first cause of action is for a penalty under section 82 of the Sanitary Code of the City of Yonkers. Chapter 184, § 2, tit. 9, Laws 1881, provided as follows: "And the board of health is hereby authorized and empowered to establish

* regulations as may be necessary to carry into effect the powers of said board, and to enforce observance of its sanitary code *

by imposing penalties,” etc.

Pursuant to the power thus conferred, the board of health duly adopted and published a sanitary code, in section 82 of which it was provided: "Whatever is dangerous to human life or to health

and whatever renders the air or food and water or drink uuwholesome are declared to be nuisances and to be illegal, and every person having aided in creating or contributing to the same, or who may support, continue or retain any of them, shall be deemed guilty of a violation of this section."

And section 97 of the Sanitary Code provides for the penalty for a violation of section 82 or any other section of the Code, as fol. lows:

"Every person violating any of the provisions of this Sanitary Code, of any ordinance, by-law, rule, order, resolution or regulation of the board of health of the city of Yonkers, shall, for each and every offense, forfeit and pay a penalty of one hundred dollars, which penalty shall be recovered, with costs, in an action brought by said board of health in its name in any court of competent jurisdiction. Such violation is also liable to be restrained by injunction "

The proof made out a clear case of maintaining a nuisance, under section 2, tit. 9, c. 184, Laws 1881, and of violating section 82 of the Sanitary Code, and the defendant was properly held liable to the plaintiff for such violation in the sum of $100 and costs, and the court properly restrained and prohibited the defendant from continuing to maintain his pond in the Nepperham river or stream, upon the ground that such pond is necessarily a nuisance. This was a part of the relief sought for by the complaint.

It should be observed that section 2, tit. 9, c. 184, Laws 1881, contains also the following provisions in regard to the power of the board of health of the city of Yonkers:

"In addition to the powers herein expressly granted to have and exercise all the powers now or at any time hereafter conferred upon boards of bealth in cities by any general law."

The plaintiff has, therefore, all the powers that were under discussion in the case of Gould v. City of Rochester, 105 N. Y. 46, 12 N. E. Rep. 275. Under this decision of the court of appeals, plain. tiff had full power to ordain the section of the Sanitary Code now under consideration, and also to enforce the same in such an action as the present. The proof showed that the only effectual way to abate the nuisance was to destroy the dam, and enjoin the rebuilding of any obstruction to the running current of the water.

The second cause of action is for disobeying directions of the board of health in regard to removing the dam and clearing out the pond, etc.

It is to be observed in regard to this cause of action that the defendant had no notice of the proposed action of the board of health. He only had notice of the resolution directing him to remove the dam after it was passed. Again, at this time the board did not adjudge the dam to be a nuisance, or the cause of any nuisance.

We think an action cannot be maintained to enforce a penalty for a disobedience of such a resolution, passed without notice to the parties to be affected thereby. People v, Wood, 62 Hun, 131, 16 Ñ. Y. Supp. 664. The remedy of the board of health was to abate and remove the nuisance, if one existed, and charge the expense upon the owner of the land; not to order him to do it, and impose a penalty for failure to do so. It will not do to say that the facts proved upon the trial of the case justi. fied a judgment upon this count in the complaint, as the defendant was on trial for a violation of this specific ordinance; and, if the ordinance was insufficient, the defendant must be acquitted of the charge under it. The finding, therefore, under the second cause of action must be reversed.

The answer of the defendant, by not denying it, admits that the resolution which proved the basis of the third cause of action was duly served upon him, and he conceded that it has been violated and disobeyed. It is objected on the part of the defendant that the board had no power to prohibit the rebuilding of the dam, and thereby prevent a nuisance, but that the board must wait until it was rebuilt, and then 'adjudge it a nuisance. It might as well be said that the board could not prohibit a load of cholera-infected clothing from coming into the city, but must wait its arrival before taking measures to abate the nuisance. simply a means taken to prevent the increase or renewal of what had already been adjudged a nuisance dangerous to life and health. We think the resolution was reasonable and proper, and within the powers conferred on the board of health.

The judgment should be affirmed as to the first and third causes of action, and reversed as to the second; also affirmed as to the injunction. We find no exceptions disclosing error sufficient to reverse the judgment.

It was



(Supreme Court, General Term, Second Department. July 28, 1893.) 1. CERTIORARI TO MUNICIPAL BOARD - LEGALITY OF BOARD.

The legality of the mwicipal board cannot be questioned on certiorari to review its proceedings, since such writ assumes the legal existence of

the board. 2. SAME-CITY OF YONKERS.

The charter of the city of Yonkers, (Laws 1881, c. 184,) tit. 9, § 1, proviles that the supervisor and five other officers named shall constitute the board of health of such city. Laws 1892, c. 54, (amending titie 1, $ 1, and title 2, § 1, of such charter,) & 1, creates a fifth ward in such city.

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