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Lamming v. Galusha, 135 N. Y., 239.

unless in exceptional cases, is not material. (Congreve v. Smith, 13 18 N. Y., 82; Clifford v. Dam, 81 id., 56. The General Term seems to have been under a misapprehension in supposing that the complaint set out a cause of action for the physical injury of the plaintiff, based on negligence. This was not the gravamen of the complaint.) The complaint alleges the unlawful obstruction of the highway, and then follows an enumeration of the injuries sustained by the plaintiff to his real property by reason of the nuisance, and of the physical injury, stating time, place and circumstances. If the sole cause of action was the personal

14 injury, the plaintiff would be contined to the ordinary action for damages and could not maintain a claim for equitable relief by injunction. In that case the legal remedy for the wrong suffered by the plaintiff would be complete and adequate. An action by a private person to restrain the continuance of a public nuisance will only lie when the nuisance and the injury suffered are continuous, affecting the value of his property or the exercise of his personal rights, or impairing his health and comfort in connection with the enjoyment of property. In such case to prevent multiplicity of actions and to give final relief, he may invoke the 15 equitable power of the court. But the possibility that a traveler injured on the highway by a railroad train unlawfully thereon may, on some future occasion, be subjected to a similar injury, does not entitle him to maintain an action for an injunction. But the question here is whether a plaintiff having a cause of action which entitles him to an injunction restraining the maintenance and operation of the railroad by reason of its continuous interference with his rights of property may unite with the demand for equitable relief by injunction and for damages for such inter

16 ference, a claim for damages for a personal injury suffered on a particular occasion from the same wrongful appropriation and use of the highway; or in other words, whether he may unite in a single action all his claims, legal and equitable, which arise in consequence of the same general cause, viz., the nuisance maintained by the defendant. This is a question of procedure governed by the course and practice of the court, or by the statute, if made the subject of statute regulation.

We are of opinion that the causes of action were properly


Lamming v. Galusha, 135 N. Y., 239.

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17 united under § 484 of the Code of Civil Procedure, which

authorizes the plaintiff to unite in his complaint two or more causes of action, whether such as were formerly denominated legal or equitable, or both, in the cases specified, and among others : “Sub. 9. Upon claims arising out of the same transaction or transactions connected with the same subject of action and not included within one of the foregoing subdivisions.” The subject of the action in this case was the injury committed by the defendants in maintaining a public nuisance which subjected

the plaintiff to injuries specified, viz.: injury to real property 18 and personal injury. The injuries were distinct in character,

and while the injury to the real property was continuous, a physical injury was consummated when first inflicted. But they both proceeded in a general sense from the same wrong, the unlawful obstruction of the highway by the defendant, and they were all, we think, “transactions connected with the same subject of action” within the meaning of § 483, and may properly be redressed in a single action. This conclusion is in harmony

with the general principle of equity jurisprudence, which aims 10 at complete and final relief in a single action in respect of all

matters between the same parties, growing out of the same general transaction. It is supported by the significant language of the court in Chapman v. City of Rochester (110 N. Y., 276), which was an action to restrain the pollution of a stream and for damages. Danforth, J., said : “ Moreover the plaintiff is found to have sustained a special injury to his health and property from the same cause, and we find no reason to doubt that he is entitled not only to compensation for damages thereby occasioned, but

also to such judgment as will prevent the further perpetration 20

of the wrong complained of.” (See also Shepard v. Man. R’way Co., 117 N. Y., 442.) These views lead to a reversal of the judgment of the General Term and an affirmance of the judgment of the Special Term, with costs.

All the judges concurred.


Note on the Distinction between Negligence, Nuisance, etc.



[From 25 Abb. N. C., 195.] At common law, in an action on the case

1 for damages, the question whether the pleader regarded the cause of ac. tion as negligence or nuisance was deemed of very little importance, if any, so far as concerns the ground of recovery at the trial (See Panton v. Holland, 17 Johns., 92; Adsit r. Brady, 4 Hill, 630); and the distinction is not much explained in the books. But under the Code it frequently confronts the practitioner.

The importance of this distinction, which cost the plaintiff his verdict in the case in the text, is enhanced by several practical considerations.

I. The Limitation. First, the period fixed by the statute of limitations within which to bring actions for negligence may differ from that fixed for nuisance or willful act.

2 Code Civ. Pro., § 383, subd. 5, provides that an action for a personal injury, resulting from negligence, shall be commenced within three years after the cause of action has accrued.

Code Civ. Pro., § 382, subd. 3, provides that an action for an injury to property shall be commenced within six years after the cause of action has accrued.

This distinction, made by the general statute of limitations, turns on the thing injured, rather than on the cause of injury, although it is true that in the one the ground is more commonly damage by negligence, and that in case of nuisance the damages are more commonly to property. 3

But the short limitation of actions against cities in this state of over 50,000 inhabitants (L. 1888, c. 801) is confined to personal actions for negligence. 24 Abb. N. C., 293. The short limitation of actions against villages, however, for personal injuries is not confined to those for negligence. L. 1889, p. 608, c. 440.

(See Webber v. Herkimer, etc. Street Ry. Co. (1888), 109 N. Y., 311 ; s. c. 15 State Rep., 262, where a carrier's liability for an injury to a passenger was held barred by the limitation for negligence, even though the action be in form on contract. And compare Maxson v. Del., L. & W. Ry. Co. (1889), 112 N. Y.,

559; s. c. 21 State Rep., 767.)

It may perhaps be a question which limitation applies when the structure or business is lawful, but becomes a nuisance by defendant's negligence in managing it.

II. Notice or demand before suit.-Besides the familiar rule that as against the mere continuer of a nuisance created by others notice is necessary, it is important to observe that statutes in this state require presentation of claim to certain municipalities as a preliminary to some actions founded on negligence, but do not require it in those founded on a nuis





Note on the Distinction between Negligence, Nuisance, etc.

5 Frankel v. City of New York, 18 State Rep., 241 ; s. c. 2 N. Y. Supp.,

294. Here, on the question of the necessity of the presentation of a claim to the city before suit, it was urged on behalf of the plaintiff that the action was not for negligence, but for damages caused by the existence of a nuisance; and that, therefore, the act of 1886 could not apply, as in terms it is limited to actions arising from negligence. PATTERSON, J., said :

“ The complaint does not sustain this contention. It is not charged that the alleged nuisance was created by the city, or its officers or employees, but that the city negligently suffered it to remain after notice of its existence. The city is not liable for injuries caused by obstructions placed in the highway by third parties until after notice, actual or con

structive. Hume v. Mayor, etc., 47 N. Y., 639. Upon such notice being 6 given, it becomes the duty of the city to remove the obstruction, or cause

it to be removed. Failure to do this is negligence. As against the other defendants, a cause of action is set forth, based upon a placing of a nuisance in the highway. Their liability arises independently of negligence. Congreve v.: Smith, 18 N. Y., 79 ; Congreve v. Morgan, id., 84 ; Irvine v. Wood, 51 id., 224. But as to the city it would be responsible on the theory of its negligence.”

III. Legal or equitable relief.—The remedy afforded for injuries inflicted by negligence does not, as does that for nuisance often and for willful acts sometimes, include equitable relief. The only remedy for negligence is damages recoverable in an action of a legal nature. Nuisance is relieved

against, also, in a common law action for abatement and in an equitable 7 action for damages, injunction, or abatement, or all, as the case may be.

IV. Right of trial by jury.-As a consequence there is a somewhat obscured distinction as to the right of trial by jury. An action for negligence is always thus triable as matter of right. An action for nuisance, if framed as an equitable action, is not within the constitutional right of trial by jury. Compare Parker v. Laney, 1 Supm. Ct. (T. & C.), 590; rev'd in 58 N. Y., 469 ; Hubbard v. Russell, 24 Barb., 404; Brown v. Woodworth, 5 id., 550 ; Waggoner v. Jermain, 3 Den., 306 ; Van Bergen v. Van Bergen, 2 Johns., Ch. 272; Peck v. Elder, 2 Sandf., 129 n; Neward v. Lee, 3 Sandf., 281; Ellsworth v. Putnam, 16 Barb., 565; Cornes v. Harris, 1 N. Y., 223, The right is given by statute in this state (Code Civ. Pro., S 968) in actions

“for a nuisance,” without any express qualification. But the courts con8

strue this clause as applicable only to the actions for such relief as might have been had at common law; and if the action is framed for an injunction, a jury trial is no more matter of right than it was before the Code. Cogswell v. N. Y. & New Haven R. R. Co., 105 N. Y., 319 (engine-house adjoining a city residence); Olmsted v. Rich, 6 N. Y. Supp., 826 (keeping bees).

V. Contributory negligence.—The defence available in an action for negligence, that the plaintiff's negligence concurred in producing the injury complained of is not available in an action for a willful wrong.

VI. Tests of the distinction between the causes of action.-There are many cases in which the practitioner may well pause to consider whether


Note on the Distinction between Negligence, Nuisance, etc.

he should allege negligence or nuisance. The owner of a house opens the 9 street to lay his water pipes or construct his coal hole, and omits to guard and light the excavation; should the gist of an action for an injury sustained by a passer-by, be nuisance or negligence? Is the pleader bound under the doctrine of the case in the text to indicate his theory of the action? Is it not enough that he state the facts as held in Laflin Rand Powder Co. v. Tierney (Ill.), 23 Northeast Rep., 389, or must he choose bis ground in the law also, and commit himself to it in the complaint? The city builds a sewer which discharges sewage directly on plaintiff's lot. Must plaintiff indicate in his pleading whether he claims for negligence, as Hardy v. City of Brooklyn, 90 N. Y., 435, or nuisance or for trespass, as in Seifert v. City of Brooklyn, 101 N. Y., 136; affi'g 15 Abb. N. C., 97 ; and Chapman v. City of Rochester, 109 N. Y., 301; affi'g 23 Weekly Dig., 424. 10

(Compare Ehrgott v. Mayor, etc., of N. Y., 96 N. Y., 261; rev'g 66 How. Pr., 161, Cohen v. Mayor, etc., of N. Y., 113 N. Y., 532 ; Vogel v. Mayor, etc., of N. Y., 92 N. Y., 10).

Or is the delict of the owner a nuisance, and that of the municipality in not removing it negligence? (Compare People ex rel. Bentley v. Mayor, etc., 18 Abb. N. C., 123—where mandamus was issued to compel the authorities to remove a sidewalk obstruction because it was a nuisancewith Kuntz v. City of Troy, 104 N. Y., 344, where the city was held liable for negligence to a person injured by such an obstruction.)

May the same cause of injury be a nuisance considered as a cause of action against the creator of it, and only negligence as a cause of action against one who neglected the duty of interfering to remove it? If so an

11 excavation in the highway may require the action against the maker of it to be for nuisance, but an action against the highway officer having funds, or the town or city, to be for negligence.

In Cleveland (City of) v. King, 132 U. S., 295, the Supreme Court of the United States cut across this distinction, putting the recovery against a municipal corporation for injury caused by an obstruction created by private individuals, upon the ground of liability for negligence; but citing as authority Cardington v. Frederic, 46 Ohio, where it was held that such an action was “an action for a nuisance."

Dickenson v. Mayor, etc., of N. Y., 92 N. Y., 584; affi'g 28 Hun, 254, accords with the language of the Supreme Court in Cleveland v. King,

12 above cited.

Some minor distinctions are traceable, which may aid sometimes in determining these questions. The term nuisance implies something of continuity, persistence of conduct, or permanence of position or structure. The shock of a single blast by a contractor using too heavy a charge would be regarded as negligence; the jar of a continuity of shocks caused by a steam engine too heavy for the building makes the running of the engine a nuisance. A single shriek of a locomotive whistle if injurious, is actionable on the ground of negligence, if at all. The customary and habitual shrieking in a crowded city is actionable as a nuisance. The same dis. tinction is observable in respect to willful wrong. A single aspersion may

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