Close v. Witbeck
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Clark Witbeck, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schenectady on the 21st day of February, 1907, upon the decision of the court rendered after a trial at the Schenectady Special Term.
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Appeal by the defendant, Clark Witbeck, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schenectady on the 21st day of February, 1907, upon the decision of the court rendered after a trial at the Schenectady Special Term. This is an action to require the abatement of an alleged nuisance consisting of the projection over a sidewalk of a show window in front of defendant’s store and to recover damages because thereof. Plaintiffs own a building on the same side of the street as the defendant’s building. The two buildings do not…
1Opinion of the Court
Cochrane, J.:
Assuming, without deciding, that defendant is maintaining a public nuisance, that fact alone does not justify this action. For such a grievance redress must be obtained by some action or proceeding in behalf of the public, and not by a private action. To entitle plaintiffs to recover herein they must establish that they *546sustain damages of a personal and peculiar nature, such as are not sustained by the rest of the community, and also that such damages are substantial and not merely nominal. (Wakeman v. Wilbur, 147 N. Y. 657; Callanan v. Gilman, 107 id. 360, 370; Francis v.…
2Cases cited2 opinions
- Wakeman v. . WilburNew York Court of Appeals · 1895
- Morison v. American Telephone & Telegraph Co.Appellate Division of the Supreme Court of the State of New York · 1906
3Cited by5 opinions
- Buffalo Park Lane, Inc. v. City of BuffaloNew York Supreme Court · 1937
- Daurizio v. Merchants Despatch Transportation Co.New York Supreme Court · 1934
- Gibbons v. HoffmanNew York Supreme Court · 1952
- Stevens v. NearNew York Supreme Court · 1952
- Hellinger v. City of New YorkNew York Supreme Court · 1916