Dunster v. Kelly
The Superior Court of New York City
Appeal from order. The plaintiffs were the owners of certain premises in the city of New York, and the defendant was the owner of the premises adjoining on the east.
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Appeal from order. The plaintiffs were the owners of certain premises in the city of New York, and the defendant was the owner of the premises adjoining on the east. The plaintiffs brought their action to recover damages for injuries which they alleged they sustained, by reason of the emission of smoke, dust, and dirt upon their premises, through certain stove pipes which the defendant had inserted into the wall separating the plaintiffs’ premises from those of the defendant. The defendant admitted the title of the premises mentioned in the complaint to be as there alleged, but denied the…
1Opinion of the Court
By the Court.—Truax, J.
The only material issue raised by the pleadings was, were the plaintiffs injured *373by the acts of the defendant ? The allegation in the answer that the wall between plaintiffs’ premises and defendant’s premises was a party wall, was an allegation of an immaterial fact, because, if the allegation that the plaintiffs were injured by the emission of smoke, dust, and dirt, from the defendant’s premises, upon theirs, was true, it was no defense that such emissions were made from a party wall.
If the defendant by the allegation that the wall had been in use inore than twenty…
2Cases cited2 opinions
- Rathbone v. . McConnellNew York Court of Appeals · 1860
- Mechl v. SchwieckartNew York Supreme Court · 1876