Opinion
December 29, 1942.
Plaintiffs-respondents, owners of a two-family brick house and detached garage in the outskirts of Watervliet, have obtained a judgment for nuisance against appellant coal company for $282 damages, upon the theory that the coal yard gave off noxious odors and dust, and that the trucks were started at unreasonable hours. The damages were arrived at as reduced rental for the period between January 1, 1938, and November 1, 1941. The cause was tried before an official referee. (HASBROUCK, Off. Ref.). The coal pockets were seventy-five feet from the dwelling which fronts upon Third avenue, a cul de sac ending at a railroad embankment upon which there are four tracks, some belonging to the D. H. Company, others to the New York Central. In the immediate vicinity is a garbage disposal plant, a refuse dump (the bed of the old Erie canal), numerous manufacturing plants and a horse sales stable. The finding of nuisance generally is not sustained. Appellant, for a brief period, thawed cars which were to be unloaded by burning refuse automobile rubber tires. This ceased a considerable period ago. While it continued, it was a private nuisance and respondents should be awarded fifty dollars damages. The other items of damage should be reversed. Judgment modified by reducing the amount of damages from $282 to $50, and as so modified affirmed, without costs. The modification is made upon the law and facts. The court reverses findings of fact III, IV and VI, and adopts as its own findings I, II, and modifies V to provide that the burning of rubber happened only for a brief period during one year long past. The court further finds that there is no continuing nuisance. Hill, P.J., Crapser, Heffernan and Foster, JJ., concur; Schenck, J., dissents, and votes to reverse the decision and judgment and dismiss the complaint, with costs.