Gerow v. Village of Liberty

Citations

• 106 A.D. 357
• 94 N.Y.S. 949

Syllabus

<p>Nuisance — village sewage disposal plant — action in equity to restrain its use — damages not recoverable for physical discomfort, sickness, etc., ivheresuch facts are proved, but the damages resulting therefrom are not — the measure of damages is the difference in rental value — no claim need, be filed with the village cleih.</p> <p>In an action brought against a village by the proprietor of a boarding house, . located 975 feet distant from a sewage plant maintained by the village, to recover damages and to restrain the continued maintenance of the plant on the ground that it constitutes a nuisance, it is competent for the court, the action being in equity, to receive evidence relating to damages which accrued subsequent to the commencement of the action and down to the time of the trial.</p> <p>In such an action the court may properly refuse to charge “ that the plaintiff cannot recover for any physical discomfort, annoyance oriuconvcnience arising from alleged odors; nor can he recover for any alleged sickness suffered by himself, his family or his guests,” where, although the plaintiff gave evidence relating to such matters for the purpose of proving the existence of the nuisance, he had given no evidence showing that any damages resulted from such matters.</p> <p>The measure of damages recoverable in such a case is the difference between the rental value of the plaintiff’s property prior to the erection and maintenance of the sewage plant and its value thereafter.</p> <p>Section 322 of the Village Law (Laws of 1897, chap. 414), requiring claims against a village to be filed with the village clerk within six months after the cause of action accrued, does not apply to an equitable action to obtain relief from an alleged nuisance.</p>