Hudson v. . Caryl
New York Court of Appeals
Appeal from an order of the G-eneral Term of the Supreme Court in the sixth district, affirming a judgment in favor of the plaintiff. The action was commenced in April, 1863, to recover damages for an alleged injury, occasioned by raising the waters of Schenevus creek, by a mill dam, so as to overflow the lands of the plaintiff, and to compel the removal of such dam.
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Appeal from an order of the G-eneral Term of the Supreme Court in the sixth district, affirming a judgment in favor of the plaintiff. The action was commenced in April, 1863, to recover damages for an alleged injury, occasioned by raising the waters of Schenevus creek, by a mill dam, so as to overflow the lands of the plaintiff, and to compel the removal of such dam. There was no allegation in the complaint that the dam was a nuisance, but simply a statement of the facts, as to the over flowing of the plaintiff’s land, by means of such dam, and the injury resulting therefrom. The prayer for…
1Opinion of the Court
Gray, C.
Before, as well as since the writ of nuisance was by the Code abolished, the right existed to maintain an action for the removal of a nuisance, which, when brought, was exclusively of equitable cognizance, properly triable at Special Term and not by jury, unless the court in its discretion should otherwise order. An action at common-law might also have been maintained, for the recovery of the damages occasioned by the nuisance, which was exclusively of common-law jurisdiction, and triable at circuit and always by a jury, unless the parties should otherwise agree. The only change…
2Cases cited1 opinion
- Davis v. . MorrisNew York Court of Appeals · 1867
3Cited by38 opinions
- Lynch v. Metropolitan Elevated Railway Co.New York Court of Appeals · 1891
- Cogswell v. . N.Y., N.H. H.R.R. Co.New York Court of Appeals · 1887
- I. H. P. Corp. v. 210 Central Park South Corp.New York Court of Appeals · 1963
- Flynn v. . TaylorNew York Court of Appeals · 1891
- Chessman v. HaleMontana Supreme Court · 1905
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