Opinion
March 6, 1914.
George H. Taylor, Jr., for the appellant.
Robert A. Kutschbock, for the respondent.
Plaintiff, the owner of houses and lands upon the westerly side of Locust avenue in the borough of The Bronx, city of New York, sues for damages caused by the maintenance by the defendant of a nuisance, consisting of a plant for the manufacture of Pintsch gas, situated on the easterly side of said Locust avenue directly opposite the houses owned by the plaintiff. In the course of the operation of the plant thick black smoke is emitted heavily charged with a greasy soot, which when the wind is in a certain quarter settles on plaintiff's houses, and even penetrates into their interiors. That the plaintiff's proof established the fact of the nuisance is clear and is not disputed. The complaint was dismissed at the close of plaintiff's case because, in the opinion of the learned trial justice, the plaintiff had failed to furnish adequate proof of damages sustained. This, as we think, was error. The fact of the nuisance itself entitled plaintiff to at least nominal damages, but the proof was sufficient to enable a jury to find actual and substantial damage. It appeared that the rentals received decreased materially soon after the plant had been put into operation and never recovered, and that similar houses in other parts of the borough of The Bronx produced higher rentals. This was sufficient to take the question of damages to the jury under proper instructions. The respondent argues that an adequate reason for the low rentals which the plaintiff received is to be found in the general character of the neighborhood which is largely devoted to manufacturing purposes. This argument goes only to the quantum of damages and should be addressed to the jury rather than the court.
The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
INGRAHAM, P.J., McLAUGHLIN, LAUGHLIN and HOTCHKISS, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.