damage sustained by him as the lessee of the premises during the period that he was in possession as such lessee is now settled by the Court of Appeals (Bly v. Edison Co., 172 N. Y. 1, 64 N. E. 745, 58 L. R. A. 500); and the substantial questions for the jury were, did the defendant maintain a nuisance, and, if so, what were the plaintiff's damages? A nuisance is defined in the Bly Case as "an unreasonable, unwarrantable, or unlawful use of one's own property to the annoyance, inconvenience, discomfort, or damage of another"; and, accepting this definition, we think the evidence justified the jury in finding that the use to which the defendant had put the premises was an unreasonable, unwarrantable, or unlawful use, to the annoyance, inconvenience, discomfort, or damage of the plaintiff. This building had been in use as a hotel for years before the defendant acquired this property, and erected upon it a plant for generating electricity. While supplying the public with electricity, light, and power, it was none the less a private corporation, organized for private gain, and it voluntarily selected the premises in question upon which to conduct its operations; and the question whether the operation of such a plant would be inconsistent with the general character of the neighborhood, and such as to necessarily injure the use to which the adjoining property was put, was the serious question in determining whether the use to which the defendant put its property was unwarrantable and unreasonable. There are many parts of New York where a building devoted to such a use would manifestly have no injurious effect upon the adjoining property, and there are many localities where such a use would produce great injury, and entirely destroy the value of adjoining property as used by its owners. When the defendant acquired its property in TwentyEighth street, the neighborhood was residential, and the owner of property upon this street had no right to there erect a structure and apply it to a use which was inconsistent with the general use of property in the neighborhood, and which would necessarily cause those owning and in possession of adjoining property an injury; and when the use of property is spoken of as unwarrantable and unreasonable, it necessarily relates to the character of the locality in which the property is situated, considering the location, and the use to which the neighboring property was put. It requires but little evidence to show that the use to which the defendant devoted this property was one which would necessarily be an annoyance to occupants of adjacent property, and which would seriously affect the usable value of that property to the occupants; and, that being so, it would seem to follow that the person devoting his property in such a locality to such a use was maintaining a nuisance. We think, therefore, that the finding of the jury that the defendant was maintaining a nuisance was sustained by the evidence.

The next question is as to the proper measure of damages, and this we have lately had before us in the case of Bates v. Holbrook, 89 App. Div. 548, 85 N. Y. Supp. 673. We there held that the measure of damages was the injury to the usable value of the property which was caused by the nuisance; that in case of a hotel such usable value could be determined by the decrease in the rent of the rooms, and the loss in the business of the hotel; and that this rule is not in violation of the principle that in actions of this character loss of profits is not

and 121 New York State Reporter

recoverable. It follows that the 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. This being the rule, it was not improper for the court to charge that 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 its power station." There were no profits alleged or proved except such as were directly connected with the room rent and the restaurant, and the defendant did not except to this charge.

We are then to determine whether the court refused to charge any request upon this subject to which the defendant was entitled. The first request that the court refused upon the question of damages was the seventh, which is that "the measure of damages applicable to a case of this kind is the actual diminution in rental value by reason of the defendant's acts." This request was plainly erroneous, in that 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 nuisance. The defendant also requested the court to charge "that loss of income from business is not provable as an element of damage." This, if we are right as to the measure of damage applicable to such a case, was not correct, and these are the only two requests to charge which bore on the question of damage. There was no error, therefore, in the charge of the learned trial judge or in his refusal to charge upon this question that would justify us in reversing the judgment.

The other requests to charge which were refused we think were all properly refused. The use to which the defendant put this property was no less a nuisance, because no care in the operation of the machinery supplied would prevent it from being one. It is not alleged that the defendant negligently conducted its business, or that the machinery was not proper for that purpose, but that the generation of electricity upon these premises by proper machinery, carefully used, necessarily caused the vibration, dirt, dust, cinders, and odors that made the conduct of such a business in such a locality a nuisance; and, the jury by their verdict having found that it was such a nuisance, it was no defense to prove that such a business could not have been conducted in such a locality without its being a nuisance.

The other propositions presented do not require discussion, as we are satisfied that the defendant was not entitled to have any of them charged.

There are many exceptions to evidence scattered through this record, some of which are relied upon by the defendant upon this appeal. The most serious is that presented to the admission of a petition to the health department of the city of New York asking that this defendant's power house be condemned as a public nuisance, and removed to such locality as would not be injured thereby. An inspector of the board of health was called as a witness by the plaintiff, and testified that he had visited the defendant's power house in West Twenty-Sixth street, and the plaintiff's hotel in the same street. He testified as to

the results of his inspection of the plaintiff's premises and the other property in the neighborhood. Upon cross-examination he testified, in answer to questions by counsel for defendant, that he went there in pursuance of a complaint that had been made against the operation of this station; that the complaint was a petition signed by a number of the property owners in the neighborhood, and that he based his report to the board of health upon his own investigation of the premises; that he had the original complaint with him at the time he was examined, which was filed with the board of health; whereupon counsel for the plaintiff asked the witness to produce the petition, and offered it in evidence, which was objected to, the court saying: "I will let the petition in, simply for the purpose of showing what it was, not as proof of any of the facts which the petition itself contained. It is simply as showing you have asked about the petition, and the petition itself is in writing." For this limited purpose it was admitted. I do not think it was incompetent for that purpose. The result of the witness' examination having been detailed by the witness, the defendant brought out the fact that such examination was based upon a petition or complaint which had come to the health department, to investigate which the witness made the examination. The nature of the examination, its thoroughness, and the object that the witness had in view in making it, were material for the jury in determining the weight to be given to his evidence, and it was competent for the plaintiff to show just what that complaint was, that the jury could judge of the thoroughness of the examination, and the effect to be given to his testimony as to what he discovered. The court carefully limited the admission of this petition for that purpose, and, if the defendant had wished to have the jury instructed that they were not to consider that 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.

The defendant also objects to evidence as to the use of the street by the defendant; but I think this evidence, in the connection in which it was given, was not incompetent, and the court expressly charged the jury at the request of the defendant that no damages could be awarded to the plaintiff by reason of the obstruction of the sidewalk or road temporarily for business purposes, or for the purpose of taking machinery or appliances into the defendant's building. The defendant, maintaining a nuisance, was liable for the damage that the nuisance caused, and any obstruction of the street by the defendant by ashes or dirt in front of the plaintiff's premises was properly to be considered by the jury. There was no evidence given to which objection was made to any use of the street in front of the defendant's premises by the defendant. The other objections I do not think at all material or present any error which would justify us in reversing the judg

ment.

Upon the whole case, I think the testimony fairly sustained the verdict of the jury, and that the judgment and order should be affirmed, with costs. All concur.

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MANNING v. SEABOARD PAINT CO.

(Supreme Court, Appellate Term. March 11, 1904.)

1. CONTRACTS-MODIFICATION-BURDEN OF PROOF.

A party to a written contract, claiming it was modified by a subsequent oral agreement, has the burden of proof.

Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by Frentiss H. Manning against the Seaboard Paint Company. From a judgment for defendant, plaintiff appeals. Reversed. Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ.

Spencer, Ordway & Wierum, for appellant.

John Murray Mitchell, for respondent.

MCCALL, J. This is an action brought by plaintiff for damages for alleged breach of a written contract of employment. The plaintiff's Exhibits A and B are couched in such terms as import a complete legal obligation, without any uncertainty as to the object and extent of the engagement, and from them it may be conclusively presumed that the whole engagement of the parties, the extent and manner of their undertaking, were reduced to writing. By the terms of this contract, the plaintiff was called upon to give his services. in the defendant's paint business for at least a term of six months, at a monthly salary of $100, and the mutual obligations and duties of such a position were to be binding on both parties. The plaintiff entered the service of the defendant in January, 1903, and continued therein until the 1st of April, 1903, a period of three months, when without his consent, and against his protest, the defendant discharged the plaintiff, or at least forced him to sever his connection with the company. Plaintiff was paid in full for his services rendered under this contract up to April 1, 1903, from which date, and for the ensuing three months of the period fixed by his contract, he was not allowed to nor did he perform any services for the defendant, although he notified them in writing that he held himself in readiness to perform his part of the contract. For the three-months salary due him under such contract this action was brought, all the above facts were proven on the trial, and thus a prima facie case was made. The defendant sought to be released from the obligation of the original contractthat is, from such portion of same as would be fixed by the last three months thereof-by endeavoring to prove, first, that the plaintiff was incapable and negligent, and this contention he endeavored to sustain by proof of a meager amount of sales wrought through plaintiff's work during the first three months, and by showing that he disobeyed the orders of the manager to meet him at a stated time, as he (the manager) had directed him to do through a third person. As a matter of fact, the letter directing the plaintiff to meet defendant's manager, through the negligence of defendant's own employé in misdirecting same, did not reach the plaintiff until two or three days after the time fixed for plaintiff to call, and altogether the evidence to

sustain the contention of negligence and incapability is of such a character that it should be accepted only in the light that the claim was a mere subterfuge to avoid the obligation of the contract. A further defense interposed by the defendant was that by a subsequent oral agreement the terms of the original contract were modified by limiting the time of employment to cover a period of three months instead of six months. While it is perfectly competent for the parties to modify a written agreement by an oral arrangement subsequently entered into (Solomon v. Vallette, 152 N. Y. 147, 46 N. E. 324), still, in our judgment, the defendant did not sustain the burden of proof which the law imposes upon him in support of his contention, and the judgment rendered in this case is clearly against the weight of evidence, and must be reversed.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

PERSICO v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term. March 11, 1904.)

1. STREET RAILROADS-ACTION FOR DAMAGES-INSTRUCTION-APPEAL AND ERROR.

In an action against a street railroad for damages, where the plaintiff's contention was, as charged by the court, that the rear wheels of his wagon were struck by defendant's car, while defendant's contention was that the plaintiff drove on the track on an angle when the car was only 15 or 18 feet away, and that the wagon was struck in the side, error cannot be predicated on that part of the charge that if the jury believed that plaintiff's wagon was not struck in the rear, but was struck in the side, towards the front of the wagon, they could not, under the evidence, find a verdict for the plaintiff, no request for modification or greater accuracy of statement having been made.

Appeal from City Court of New York, Trial Term.

Action by Antonio Persico against the Metropolitan Street Railway Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ.

Goepel & Wahle, for appellant.

Bayard H. Ames and F. Angelo Gaynor, for respondent.

FREEDMAN, P. J. A reversal is sought upon the allegation that the trial judge erred in charging the jury that if they believe that plaintiff's wagon was not struck in the rear, but was struck in the side towards the front of the wagon, they could not under the evidence in the case find a verdict for the plaintiff. This proposition must be considered in connection with the entire charge, and when thus considered it will be found to be free from error. There were two irreconcilable theories of the manner in which the accident occurred, presented to the jury for consideration. Plaintiff's testimony showed, and his contention was, as charged by the trial judge, that the rear wheels of his