Wenzel v. Duncan

261 A.D. 1003, 26 N.Y.S.2d 616, 1941 N.Y. App. Div. LEXIS 8512

Opinion

Appeal from order denying motion of Incorporated Village of Freeport to dismiss the complaint as against it under rule 106, Rules of Civil Practice, on the ground that it is insufficient in law. Order affirmed, with ten dollars costs and disbursements, with leave to appellant to answer within ten days from the entry of the order hereon. For the purpose of this motion the village has admitted that it created a nuisance upon the land of another, that is, it created a nuisance in 1927 on the State highway. It further admits that it could have abated the nuisance of its own volition between 1927 and March 19, 1937, and that after that date it could have abated the nuisance with the consent of the State Traffic Commission, during all of which time it owned the traffic stanchion here involved. The rule applicable is that one who creates a nuisance upon the land of another is primarily hable in damages to one who suffers therefrom. (21 Am. & Eng. Ency. of Law, 717; 46 C. J. p. 744, § 332.) The cases relating to the creation of a nuisance on one’s own property and the transfer of that property to another have no application herein. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur. [175 Misc. 554.]