Note on the Distinction between Negligence, Nuisance, etc. 13 be slander; habitual aspersion, whether slanderous or not, may be a nuisance, as constituting a common scold. It is not strange that writers on nuisance have declared the word to be undefinable, so shadowy is the border-land between these several classes of wrongs. But a careful examination of the representative cases cited below will justify us in saying that the word as now used in the law may be justly defined as a continuing use of property or course of conduct, which, even if it would be rightful were the act done an isolated one, is by reason of the proximity of others, a violation of the duty of good neighborhood, no matter whether it be careful, negligent or willful. It will aid in solving such questions as these to consider what are the essential elements in each cause of action. Actionable negligence con14 sists in the omission to fulfil a duty of care. The complaint must allege facts which show that defendant was under a duty to take some degree of care in view of danger to plaintiff's property or person; and that he or his servants failed to do so to plaintiff's injury. If this be shown, intent is not material except on the question of damages. The right of recovery exists whether the omission was inadvertent or willful, or whether it was inadvertent on the part of the employer and willful on the part of the servant. It is true that some authorities have held that if willfulness is alleged there can be no recovery for negligence; but the better opinion is that if facts showing an omission of due care be alleged and proved the addition of an unproved allegation of willfulness does not vitiate. 15 Nuisance on the other hand is a use of property or a course of conduct which violates a duty of good neighborhood; and negligence and willfulness are alike immaterial, unless it may be on the question of damages. A bone boiling establishment in a remote and isolated place is rightful; but if the town of residences grows out to it, it may be a duty of good neighborhood to cease the use of the place for such offensive work; and the fact that the owner is as careful as possible, and has no intent to injure others will not justify the continuance of a process which proximity has made noxious to the community. The law of negligence is growing up out of the increasing duty of care. upon all persons in the increasingly crowded communities and increasingly dangerous instrumentalities of modern times. The law of nuisance is growing up out of the increasing necessary restrictions on otherwise 16 lawful conduct and uses of property in such community. Negligence usually consists in the manner of doing a thing, whether the thing in itself be lawful or unlawful. Nuisance consists in the thing itself considered in its proximity to other persons, whether the manner of it be careful or careless. VII. Examination to enable to frame complaint.-For the right to examine defendant, to enable plaintiff to frame his complaint, see 2 Abb. New Pr. & F., 419. VIII. Amending at the trial.-The doctrine of the text that these are different causes of action precludes amending from one to the other at the trial. Reining v. City of Buffalo, 102 N. Y., 308. But if one is sufficiently alleged, other allegations connected therewith 17 and not necessary to that cause of action, but appropriate and even sufficient to establish another cause of action, may be allowed to be struck out at the trial. Thus in an action for nuisance allegations of a trespass may be got rid of. And in action for negligence allegations of willful wrong may be dropped. For cases selected for their aptness in illustrating some of these distinctions, see 25 Abb. N. C., 199. REINING v. CITY OF BUFFALO. New York Court of Appeals, 1886. [Reported in 102 N. Y,, 308.] The complaint in an action against the city of Buffalo must contain an allegation of the previous presentation of the claim declared on, to the Common Council, and that forty days had expired since such presentation. The provision of the charter that no action against the city shall be brought until that time has elapsed since such presentation, creates a condition precedent to the commencement of an action, and makes the presentation and lapse of time a part of the cause of action.* The Legislature have power to impose such a condition. Action for damages caused by change of grade. The allegations of the complaint were: 1 That the defendant, the city of Buffalo,is a municipal corporation, duly organized, created and existing under and by virtue of an act of the Legislature of the State of New York, entitled" An Act to Revise the Charter of the City of Buffalo," passed April 28, 1870, and the various acts amendatory thereof; and that the defendant, the New York, Lackawanna & Western Railway Company, is a corporation duly organized and existing under the laws of the State of New York as a railroad corporation, and as such 2 is engaged in constructing and operating a railroad in the city of Buffalo. That Commercial and Water streets and Maiden Lane, herein * See note on the effect of statutes prohibiting the bringing of an action except upon the performance of some condition, such as demand presentation of claim, or audit, in 24 Abb., N. C., 292. Reining v. City of Buffalo, 102 N. Y., 308. 3 after mentioned, are and for many years past have been public streets, duly created, laid out and existing in the city of Buffalo; and that it is the duty of the defendant, the city of Buffalo, under the said act of incorporation and the various acts amendatory thereof," to prevent and abate all nuisances" in said city, "to prevent encroachments upon projections over, injury to or the encumbering of the streets, alleys and public grounds," of said city, "and to abate all nuisances therein;" and that for such purposes and the performance of such duty, in and by such act of incorporation and the various acts amendatory thereof, it is given full power and authority. 4 That for many years last past the plaintiffs have been, and that they now are, the owners in fee of the following described premises, situate in said city, that is to say: [Description of premises.] That within the last four months the defendant, the New York, Lackawanna & Western Railway Company, acting with the consent and authority of the defendant, the city of Buffalo, given by and through its Common Council, on or about the 5 thirteenth day of February, 1882, has entered upon the Commercial and Water streets aforesaid, the said being paved streets of said city, and unlawfully torn up the pavements therein, and constructed in the same a rampart or embankment of earth and stone of about the height of eight feet, supported in its place by a wall of masonry; which rampart or embankment occupies about three-fourths of the entire carriageway, in and along the entire front of the plaintiff's property aforesaid, and reduces the width of such carriageway in and along the entire front of the plaintiffs' premises aforesaid to the width of about ten feet, narrowing the same so much that it is impossible for wagons and vehicles of the size commonly used upon the streets of said city to pass one another on said streets in front of the plaintiffs' premises aforesaid, when traveling in opposite directions. 6 That the plaintiffs' premises aforesaid are situate in one of the busiest portions of said city, and that for many years past, while the plaintiffs have been the owners thereof, the same have been occupied by a large and valuable four-story brick building, used by the plaintiffs as a store and dwelling house, and that they Reining v. City of Buffalo, 102 N. Y., 308. have carried on therein for many years the business of selling 7 groceries and provisions and other goods; and that such business, until the construction of such rampart or embankment, was large and profitable to the plaintiffs; and that since the construction. of such rampart or embankment, and in consequence thereof, the business aforesaid has been greatly injured, diminished and rendered much less profitable than before. That by reason of the construction of such rampart or embankment aforesaid, not only is the passage of people in wagons and other vehicles in front of the plaintiffs' premises aforesaid obstructed and interfered with, but the sidewalks in front of the same are thereby rendered liable to be blocked up and encumbered in the winter season by snow drifting into the space between such rampart or embankment and the plaintiffs' building aforesaid. That prior to the construction of such rampart or embankment, the plaintiffs' premises aforesaid were of the value of twenty-five thousand dollars and upwards, and by reason of such construction they have been reduced in value at least twenty thousand dollars. The plaintiffs further state that such rampart or embankment so constructed in said streets constitutes and is an encroachment and incumbrance thereon, and a nuisance; that the plaintiffs are the owners of the fee of said streets as far as from the front of their premises aforesaid to the outer line of said street; and that the defendant, the New York, Lackawanna & Western Railway Company, in the construction of said rampart or embankment, has taken the same for the purpose of its railroad, without any proceeding for the condemnation thereof, and without paying to the plaintiffs any compensation therefor. And the plaintiffs further state that since the construction of said rampart or embankment in said streets and the obstruction of and encroachment thereon, in consequence thereof, the defendant, the city of Buffalo, has failed to remove the same or to attempt such removal. WHEREFORE the plaintiffs claim judgment against the defendants for the sum of twenty thousand dollars and interest thereon from the date hereof, besides the costs of this action. 9 10 11 Reining v. City of Buffalo, 102 N. Y., 308. Defendant demurred on the ground that the complaint did not allege presentation of the claim, and that forty days had expired before suit brought. The Court below granted judgment for defendant on the demurrer. The General Term affirmed it without opinion. The Court of Appeals affirmed the judgment. RUGER, Ch. J.: The sole question presented by this appeal is 12 whether the complaint, in an action against the city of Buffalo, should contain an allegation of the previous presentation of the claim declared on to its Common Council, and that forty days had expired since such presentation. The clause of the city charter requiring such a proceeding reads as follows: "No action to recover or enforce any claim against the city shall be brought until the expiration of forty days after the claim shall have been presented to the Common Council in the manner and form provided." (§ 7, tit. 3, chap. 519, Laws of 1870.) 13 The inquiry is whether this provision was intended to operate as a condition precedent to the commencement of an action, or simply to furnish a defense to the city in case of an omission to make such demand. We think the plain language of the statute excludes any doubt on the subject. It absolutely forbids the prosecution of any action until the proper demand has been made. It attaches to all actions. whatsoever, and by force of the statute becomes an essential part of the cause of action, to be alleged and proved as any other material fact. It does not purport to give the city a defense 14 dependent upon an election to use it, but expressly forbids the institution of any suit until the preliminary requirements have been complied with. The plain intent of the requirement was to protect the city from the costs, trouble and annoyance of legal proceedings, unless after a full and fair opportunity to investigate and pay the claim, if deemed best, they declined to do so. It is not in such a case necessary that a thing required should constitute one of the elements of a common law action, for if the Legislature have made even a step in their remedy a condition of its prosecution, it is essential not only that it should be |