Bogert v. Burkhalter

By the Court, Cady, P. J. The nonsuit ought to bé set aside in case the justice erred in ruling that the plaintiff was only entitled to nominal damages. Whenever the damages sustained do not necessarily arise from the act complained of, and consequently are not implied by law, in order to prevent the surprise on the defendant which might otherwise ensue on the trial, the plaintiff must in general state the particular damage which hé has sustained; or he will not be permit530 ted to give evidence of it. (1 Chitty on Plead. 386, ed. of 1809.) The plaintiff conveyed to the defendant a lot of land in the city of New-Yorlc—and the plaintiff has in the first count in his declaration alleged that the defendant promised that “he would erect on that lot a good brick dwelling house to be occupied as such, and would not erect on the said premises any building to be occupied in any manner that would be a nuisance to the vicinity of the said premises” The promise stated in the second count is the same as the promise made in the first count, except that instead of the words “vicinity of the premises,” in the first count, the words “ to the place,” are used. The promise in the third count is the same as in the first, except that the defendant promised that he would erect within a reasonable time, and would not suffer or permit to be erected on the said premises, any building to be occupied in any manner which would be a nuisance to the vicinity of the said premises. The promise in the fourth count varies from that in the third count, in the same manner as the promise in the second count varies from that in the first count. What are the breaches alleged 1 One breach alleged in each count is in substance that the defendant had not erected a good brick dwelling house on the said lot to be occupied as such; but there is nothing alleged in the declaration showing that by this breach of the defendant’s contract the plaintiff has sustained any greater or other damage than every other person in the city of New-York has sustained; there is one less good brick dwelling house in the city of New-York to be gazed at than there would have been had the defendant performed his contract. It does not appear from the declaration that the plaintiff had any property near the lot on which the defendant promised to build a house, which would have been increased in value by the defendant’s performance of his promise. The second breach alleged in the first and third counts is that the defendant has suffered and permitted a bake house to be erected on the said lot. This however is no breach. The defendant made no promise that he would not erect or suffer a bake house to be erected on the said lot. The third breach 531 alleged in the first and third counts is, “ that the defendant has suffered and permitted the premises to be occupied in a manner which is a nuisance to the vicinity of the said premises.” That is not a breach of any promise stated in the first or third counts in the declaration. The promise in the first count was that the defendant would not erect; and in the third count that he would not suffer or permit any building to be erected, on the lot, to be occupied in any manner that would be a nuisance to the vicinity of the said premises. Had the defendant surrounded his lot with a fence, and filled it with swine, and fed them with slop from a distillery, it would have been no breach of his contract. He promised not to erect, or suffer to be erected, on the said lot any building to be occupied in any manner that would be a nuisance; and it is not alleged in the first or third counts that the bake house has been occupied at all, or in any manner which has made it a nuisance. But suppose the bake house has been so occupied as that it has been a nuisance. How has it damnified the plaintiff? The declaration does not show that he has been annoyed by the heat and smoke issuing from the bake house, or that he has any property which has been lessened in value by the bake house. The second breach assigned in the second and fourth counts is that the defendant has suffered and permitted a building, to wit, a bake house, to be erected on the said lot, which is a nuisance within the meaning and intent of the written agreement. It would not promote the prosperity of the city of Hew-York to remove every bake house from it as a nuisance. But suppose the bake house which has been erected on the lot in question be a nuisance. The plaintiff has not stated how it has injured him; and consequently the motion to set aside the nonsuit must be denied,