Nickerson v. Crawford

11 N.Y.S. 503, 25 Abb. N. Cas. 91, 1890 N.Y. Misc. LEXIS 2194

• Court: New York Supreme Court
• Decided: June 25, 1890
• Status: Published

Opinion

Ingraham, J.

This action is brought by plaintiff as owner of a house and lot in the city of New York, to restrain a nuisance maintained by defendants upon adjoining property, and for damages caused by the nuisance. It is the application for equitable relief that gives a court of equity jurisdiction, and the action thereby becomes an equitable action. That cause of ac.tion, however, vested in the plaintiff as the owner of the adjoining premises. As a mere individual, disconnected with his ownership of the property, he would have no right of action to abate the nuisance. It is only because of the special injury sustained by him as owner of the adjacent premises that lie can maintain an action in equity to restrain the continuance of the nuisance. The action is, therefore, not one for personal injury, but-an equitable action for an injunction, and for the damages caused by the wrongful act complained of, and the depreciation of the rental value of the premises owned by plaintiff would be the measure of damages if he succeeded in establishing that the defendants maintained a nuisance. On the transfer by plaintiff of the property to restrain an injury to which the action is brought, the right of action passed to the transferee, and I think he should be substituted as the plaintiff in this action. Motion will therefore be granted, with $10 costs to abide the event.