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and 121 New York State Reporter is admitted to be due, and the only question to be determined upon this appeal is whether or not the defendants are liable for the rent for the month beginning June 23, 1903. Plaintiff had a judgment for the full amount of his claim, the defendants appeal, and urge that the conclusions of law to be drawn from the substantially undisputed facts entitle them to be relieved from the payment of the judgment rendered, so far as rent after June 23, 1903, is included.

On December 23, 1901, defendants leased the wharf of the plaintiff for a term of one year, expiring December 23, 1902, at a monthly rental of $100, payable on the 23d day of each month, in advance. The defendants remained in possession of said demised premises until June 9, 1903. On June 2, 1902, the defendants wrote a letter to plaintiff, as follows:

"Referring to the lease dated December 23rd, 1901. . • • We hereby give you the right of way along 40th Street for people to pass to reach the end of the wharf with egress to and from a bath placed at end of wharf."

It does not appear in the record when use was made by the plaintiff of the right given him in the letter above mentioned, but it is claimed in the brief of appellants that, after defendants had surrendered possession of the premises, the plaintiff granted the city the right to place a bathhouse off the end of the wharf and a right of way over said wharf, and it does appear that the city built a foot bridge from the end of the wharf to connect with the floating bath. On January 2, 1903, and again on January 19, 1903, after the defendants' lease expired, the plaintiff wrote them telling them their lease had expired, and asking them if they desired to renew it for another year. To these letters the defendants made no reply, and in no way indicated to the plaintiff what their intentions were, otlier than to remain in possession, paying the rent at the stipulated rate for the months of January, February, and March, 1903. There is some testimony to the effect that the defendants' superintendent called upon the plaintiff's son in October, 1902, and asked that some repairs on the dock be made, and said to the son that “They would leave as soon as they could get another pier,” but there was no authority shown in the son to act for the plaintiff, even if the conversation between him and the defendants' superintendent has any bearing in the case. By the retention of the demised premises after the expiration of the written lease the landlord had a right to elect to treat the defendants as tenants for another year under the conditions of the former devise. McAdams, Landlord & Tenant (3d Ed.) vol. I, p. 82, and cases cited.

The contents of the letters of January 2d and 19th did not show that the landlord intended to treat the defendants thereafter as monthly tenants. He called upon the defendants to indicate their intent, and their silence and continued possession of the premises was a sufficient indication of their intent to continue as tenants for another year. There is nothing in the case cited by the appellants that is contrary to this view. Drake v. Wilhelm, 109 N. C. 97, 13 S. E. 891. In that case the parties, shortly after the termination of the lease, entered into negotiations regarding a new lease. Several offers were made by the landlord, at which he agreed to make a new lease. The tenants did not accept, and asked for time to consider the proposition, which was granted. Subsequently the landlord asked for an earlier answer, and a few days later withdrew all his offers, and attempted to hold the tenants for the entire year, and this it was held, under all the circumstances, he could not do. To the same effect is Bon v. Fenlon (Sup.) 84 N. Y. Supp. 858. In the case at bar the plaintiff notified the defendants that their lease had expired for the year ending December 23, 1902, and asked if they intended to renew it. To this defendants made no reply, but continued to occupy the premises and pay rent therefor. The plaintiff accepted the rent, and clearly had the right to regard them as his tenants for another year.

The position taken by the appellants, that the granting to the city a right of way over the wharf and to a bathhouse was acceptance of the abandoned premises by the plaintiff, is equally untenable. The defendants had granted to the plaintiff a license, at least, “for people" to pass, "with egress to and from a bath.” This license was unrevoked, and it is not shown that the plaintiff gave to the city any greater license than defendants had granted him. Appellants also claim that they were justified in their abandonment of the wharf by reason of its having become untenantable through the washing away of some portion of it during their occupancy. Some testimony tending to show this was given by reference to photographs, but the photographs were not introduced in evidence; if so, the record fails to show it, and they are not attached thereto. The testimony, without them, is insufficient to show the alleged untenantable condition of the wharf, even if we should assume that section 197 of the real property law (Laws 1896, p. 587, c. 547), applies to premises of this kind covered by lease.

Judgment affirmed, with costs. All concur.

(92 App. Div. 178.)

PRITCHARD V. EDISON ELECTRIC ILLUMINATING CO. (Supreme Court, Appellate Division, First Department. March 11, 1904.)

1. CONSOLIDATION OF ACTIONS-ACTION AT LAW_EQUITY_EFFECT.

Where an action seeking to restrain the maintenance of a nuisance and for damages and a subsequent action by the same plaintiff against the same defendant for damages accruing after the commencement of the first action were consolidated and transferred to the law side of the court, the effect was to waive the equitable relief asked for in the first action, and to make the consolidated action one to recover damages caused by the maintenance of the nuisance, to be tried on the allegations of the two

complaints relevant to such an action. 2. NUISANCE-ACTION BY LESSEE.

A lessee of premises is entitled to recover damages sustained by him during his tenancy from the maintenance of a nuisance on adjoining prop

erty. 3 SAME-OPERATION OF MACHINERY.

In an action for damages sustained by a hotel keeper owing to the operation of an electric lighting plant on property adjoining his hotel, plaintiff's evidence tended to show that the machinery produced a vibration of his building; that dirt and cinders came into the rooms; that noise and bad odors invaded the premises; and that the income derived from rental of rooms had decreased since the plant was established. At the time the

87 N.Y.S.—15

and 121 New York State Reporter plant was erected the neighborhood was a residential one. Held, that the

jury were warranted in finding that the plant was a nuisance. 4. SAME-DAMAGES.

In an action by a lessee of a hotel for damages resulting from the operation on adjoining premises of an electric light plant which was a nuisance, plaintiff was entitled to recover, as the injury to the usable value of the property, the diminution in room rent of the hotel, and the loss in consequence of the failure to supply refreshments to those whose presence was

prevented by the nuisance. 5. SAME-INSTRUCTIONS.

It was proper to refuse to charge that the measure of damages was the actual diminution in rental value, since it limited the plaintiff to a recovery of the actual diminution of rental value, instead of to the diminution in the usable value of the property to the plaintiff caused by the nui

sance. 6. SAME-CARE ON THE PART OF DEFENDANT.

The operation of an electric light plant in a residential neighborhood was no less a nuisance because no care in its operation could render it less

obnoxious. 7. SAME-EVIDENCE.

In an action for damages from the maintenance of an electric lighting plant on premises adjoining plaintiff's hotel, on the ground that it was a nuisance, an inspector of the board of health testified for plaintiff that he had visited the plant, and testified as to the results of his inspection of property in the neighborhood, and on cross-examination stated that he went there because of the petition of property owners. Held, that it was not error to admit the petition in evidence, the court stating on objection to it that it was admitted merely for the purpose of showing what it was,

and not as proof of its allegations. 8. SAME-INSTRUCTIONS.

If the defendant had wished to have the jury instructed that they were not to consider the petition as any proof of the facts therein stated, it should have made a request for such an instruction when the case was

finally submitted. 9. SAME-EVIDENCE.

It was proper to admit evidence as to the obstruction of the street by defendant by ashes and dirt in front of plaintiff's premises.

Appeal from Trial Term.

Action by Myron T. Pritchard, as executor, against the Edison Electric Illuminating Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

Henry J. Hemmens, for appellant.
Frank M. Hardenbrook, for respondent.

INGRAHAM, J. The plaintiff's testator commenced this action, alleging that he was the lessee of certain preinises in the city of New York under a lease dated April 19, 1890, for the term of five years, which expired on the ist day of May, 1895, and which was renewed by a lease dated April 19, 1895, for a further term of five years ending on the ist day of May, 1900; that there was maintained by the plaintiff upon said premises during that period a hotel and Turkish bathing establishment; that since the leasing and occupation of said premises by the plaintiff the defendant has acquired certain property

lages.

adjoining the hotel occupied by the plaintiff, and caused to be built upon said property a large building, with numerous steam boilers, engines, and dynamo electric machines, for the purpose of generating electricity to be supplied by the defendant to the general public for lighting purposes; that in June, 1890, the defendant commenced to operate said machinery, and that the operation of the machinery and building upon the defendant's property is a nuisance, which has caused the plaintiff injury, to his damage in the sum of $70,000; and the plaintiff asked for an injunction to restrain the defendant from continuing such nuisance and for his damages.

The defendant interposed an answer, and subsequent thereto the plaintiff's testator died, and the action was continued in favor of this plaintiff as executor of the plaintiff in the original action. This order was entered on the 3d day of November, 1902. On May 12, 1900, the plaintiff's testator commenced a second action, realleging the same facts, alleging the continuance of the nuisance from the time of the beginning of the first action, and asking to recover the sum of $10,000 damages therefor. To this complaint the defendant interposed an answer, and on the death of the plaintiff in that action the second action was also revived in favor of this plaintiff as his executor. Subsequently, on the 14th day of January, 1903, upon motion of the plaintiff in the two actions, an order was made at Special Term transferring the action in equity "to the law side of this court for the trial of issues of fact by a jury," and further consolidating the two actions, “and that the said actions be tried as one action in said court for the trial of issues of fact by a jury, and that the trial of said consolidated action proceed in the regular order at such time as said action No. 2,017 upon the law side of the said court is reached for trial without any new note of issues being filed or a new notice of trial being served.” No appeal was taken from that order, and no new complaint was required to be served.

Upon the consolidation of these two actions as an action at law, the legal effect was to waive the equitable relief asked for in the first action, and to make the consolidated action one to recover damages caused by the maintenance of the nuisance, to be tried upon the allegations of the two complaints relevant to such an action at law for the recovery of damages. Upon the cause coming on for trial before a jury, the court called the attention of counsel to the condition of the pleadings, there being two complaints in one action, and then the defendant stated as an objection that there was no pleading before the court which raised the issues under the order of consolidation, and, claiming that the defendant should have an opportunity to answer, moved that the cause be sent back to the general calendar, so that a complaint could be served. This motion the court denied, to which the defendant excepted. The defendant does not rely upon this exception on this appeal, and it would seem that the defendant had waived the objection by not appealing from the order of the Special Term, which directly consolidated the equity action with the common-law action, and directed that they should subsequently proceed as one action.

The total damages demanded by the plaintiff in the two actions was $80,000. The jury found a verdict for the plaintiff for $16,000. The

and 121 New York State Reporter plaintiff introduced evidence tending to show that the operation of the machinery in the defendant's building produced a vibration and shaking of the building occupied by the plaintiff; that dirt and cinders came from the defendant's building into the rooms of plaintiff's building when the windows were open; that there was much noise, smoke, dirt, and bad odors from the defendant's building which invaded the plaintiff's premises; and that these conditions had increased as the defendant's business increased and more machinery was operated. There was also evidence of a decline in the rental value of the premises since this use by the defendant of its property; that about the year 1893 the income derived from the rental of rooms in plaintiff's hotel began to decrease; and that during the rest of the time, up to the trial, the income received from the rent of rooms was subsequently decreased from the income received before the establishment of the defendant's business. The defendant introduced evidence tending to show that the vibration caused by its machinery was very slight; that there was no smoke or dirt or soot from the defendant's building which penetrated the plaintiff's premises; and that the decrease in the rental value of the premises in the neighborhood was caused by a financial panic, which came in 1893, and other car:ses not connected with the occupation of the defendant's building.

Upon this evidence the trial court submitted to the jury the question as to whether the operation of the defendant's station was a nuisance"that is, whether it was an unreasonable interference with the rights of this neighboring householder in the ordinary enjoyment of his property"_and instructed the jury that "ordinarily a person may use his own premises as he pleases, and for any lawful business, but his use must be a reasonable one, in order that he may not injure his neighbor, and if, through some unusual use of the premises, actual discomfort and annoyance result to his neighbors, greater than the ordinary and reasonable use of the premises would cause, the person who chooses to use his property in this way must pay his neighbor for the injury which he does the latter.” And upon the subject of damages the trial court charged: “If the defendant's power station as operated was a nuisance, and lessened the profits of this hotel, the damages which the plaintiff may recover are to be limited to the actual loss of profits, such as you find from the evidence were caused to be lost through the defendant's acts in the use and operation of the power station;" that "any award to be made to the plaintiff should be limited to so much of the loss as was occasioned by the acts of the defendant.” There was no exception to the charge, but the defendant submitted 37 requests to charge, one of which the court charged, and refused the others, to which the defendant excepted.

The plaintiff's testimony showed a decrease in the amount received from room rent in the year 1898 as compared with the year 1897, of about $10,000 a year, and the jury have found that the total damage sustained by the plaintiff in consequence of the defendant's operation for the period between November 22, 1892, and November 1, 1898, was $16,000, a little over $2,600 per year. The defendant strenuously insists that this verdict was against the weight of evidence, and that the damages are excessive. That the plaintiff was entitled to recover the

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