Board of Health of Yonkers v. Copcutt

PRATT, J. This is an appeal by defendant from a judgment of the Westchester special term after a trial before a judge without a jury. The action was brought by the board of health directly pursuant to section 2, tit. 9, c. 184, Laws 1881, to enforce obedience to its requirements. Several important questions are raised by this appeal, but the facts are not open to much discussion, as there is no certificate that the case contains all the evidence, and we must therefore assume that the findings are supported by the proofs. Neither is it necessary to discuss the principles upon which the judgment is founded, as that subject was fully discussed in the opinion rendered at the special term. But, even assuming that the appeal book contains all the testimony, it is established to a reasonable certainty that the pond in question was an intolerable nuisance, and dangerous to life and health, and the fact that others besides the defendant contributed to it, and even the city of Yonkers itself, by discharging sewer matter into it, does not relieve the defendant from responsibility for its condition, for it was his act in maintaining the dam that kept the [628] foul substance confined in the pond. Neither is it any excuse for the defendant that others guilty of creating or maintaining a nuisance have not been prosecuted. The first cause of action is for a penalty under section 82 of the Sanitary Code of the City of Yonkers. Chapter 184, § 2, tit. 9, Laws 1881, provided as follows: “And the board of health is hereby authorized and empowered to establish * * * regulations as may be necessary to carry into effect the powers of said board, and to enforce observance of its sanitary code * * * by imposing penalties,” etc. Pursuant to the power thus conferred, the board of health duly adopted and- published a sanitary code, in section 82 of which it was provided: “Whatever is dangerous to human life or to health * * * and whatever renders the air or food and water or drinlc unwholesome are declared to be nuisances and to be illegal, and every person having aided in creating or contributing to the same, or who may support, continue or retain any of them, shall be deemed guilty of a violation of this section.” And section 97 of the Sanitary Code provides for the penalty for a violation of section 82 or any other section of the Code, as follows: “Every person violating any of the provisions of this Sanitary Code, of any ordinance, by-law, rule, order, resolution or regulation of the board of health of the. city of’Yonkers, shall, for each and every offense, forfeit and pay a penalty of one hundred dollars, which penalty shall be recovered, with costs, in an action brought by said board of health in its name in any court of competent jurisdiction. Such violation is also liable to be restrained by injunction.” The proof made out a clear case of maintaining a nuisance, under section 2, tit. 9, c. 184, Laws 1881, and of violating section 82 of the Sanitary Code, and the defendant was properly held liable to the plaintiff for such violation in the sum of $100 and costs, and the court properly restrained and prohibited the defendant from continuing to maintain his pond in the Nepperham river or stream, upon the ground that such pond is necessarily a nuisance. This was a part of the relief sought for by the complaint. It should be observed that section 2, tit. 9, c. 184, Laws 1881, contains also the following provisions in regard to the power of the board of health of the city of Yonkers: “In addition to the powers herein expressly granted to have and exercise all the powers now or at any time hereafter conferred upon boards of health in cities by any general law.” The plaintiff has, therefore, all the powers that were under discussion in the case of Gould v. City of Rochester, 105 N. Y. 46, 12 N. E. Rep. 275. Under this decision of the court of appeals, plaintiff had full power to ordain the section of the Sanitary Code now under consideration, and also to enforce the same in such an action as the present. The proof showed that the only effectual way to abate the nuisance was to destroy the dam, and enjoin the rebuilding of any obstruction to the running current of the water. The second cause of action is for disobeying directions of the [629] board of health in regard to removing the dam and clearing out the pond, etc. It is to be observed in regard to this cause of action that the defendant had no notice of the proposed action of the board of health. He only had notice of the resolution directing him to remove the dam after it was passed. Again, at this time the board did not adjudge the dam to be a nuisance, or the cause of any nuisance. We think an action cannot be maintained to enforce a penalty for a disobedience of such a resolution, passed without notice to the parties to be affected thereby. People v. Wood, 62 Hun, 131, 16 N. Y. Supp. 664. The remedy of the board of health was to abate and remove the nuisance, if one existed, and charge the expense upon the .owner of the land; not to order him to do it, and impose a penalty for failure to do so. It will, not do to say that the facts proved upon the trial of the case justified a judgment upon this count in the complaint, as the defendant was on trial for a violation of this specific ordinance; and, if the ordinance was insufficient, the defendant must be acquitted of the charge under it. The finding, therefore, under the second cause of action must be reversed. The answer of the defendant, by not denying it, admits that the resolution which proved the basis of the third cause of action was duly served upon him, and he conceded that it has been violated and disobeyed. It is objected on the part of the defendant that the board had no power to prohibit the rebuilding of the dam, and thereby prevent a nuisance, but that the board must wait until it was rebuilt, and then 'adjudge it a nuisance. It might as well be said that the board could not prohibit a load of cholera-infected clothing from coming into the city, but must wait its arrival before taking measures to abate the nuisance. It was simply a means taken to prevent the increase or renewal of what had already been adjudged a nuis’ance dangerous to life and health. We think the resolution was reasonable and proper, and within the powers conferred on the board of health. The judgment should be affirmed as to the first and third causes of action, and reversed as to the second; also affirmed as to the injunction. We find no exceptions disclosing error sufficient to reverse the judgment.