The Village of White Plains, Respondent, v. The Tarrytown, White Plains and Mamaroneck Railway Company, Appellant

The Village of White Plains, Respondent, v. The Tarrytown, White Plains and Mamaroneck Railway Company, Appellant. Second Department, March 8, 1907. Muisance — party — village may sue to enforce order of board of health —pleading — when complaint insufficient. A suit to enjoin the violation of an order of a village board of health to abate a nuisance and to enforce the same is properly brought in the name of the village instead of that .of the board of health. But in such action it is not enough to allege and prove- that the board of health declared a nuisance and ordered it abated; the complaint must allege facts showing the nuisance, and the resolution and order of the board of health ' are not evidence thereof. A complaint failing to state such facts is demurrable. . Appeal by the defendant, The Tarrytown, White Plains and Mamaroneck Railway Company, from an interlocutory judgment of the Supremo Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of July, 1906, upon the decision of. the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the complaint. This is a suit to enjoin "a violation of an order of the board of health to abate a nuisance,.and enforce the same. A. JV. Johnson [Frank H Richmond and Henry A. Robi/nson ■with him on the brief], for the appellant. Henry R. Barrett [H. T. Hyhman with him on the brief], for the respondent. ■ [MAJORITY — Gaynor, J.:] Gaynor, J.: This suit is properly brought in the name of the village instead of in that of the board of health (Board of Health v. Magill, 17 App. Div. 249) ; but the complaint does not state facts sufficient. Section 21 of the Public Health Law empowers local-boards of health to make and publish general orders and regulations for the preservation of life and health, and also orders and regulations not of general application for the suppression of particular nuisances, and to maintain suits in the name of the municipality to restrain by injunction violations of such'orders and regulations and to enforce the same. The complaint alleges that the board of health of the village after a hearing to the defendant passed a. resolution declaring the vibrations of its engines and: dynamos in its electrical power house a nuisance and a cause of danger and' detrimental to the health, of a large number of inhabitants of the village, and ordering it abated; that a copy thereof was served on the defendant, and a demand made o'f it by the.board to comply therewith, but it refused. ° There is then an allegation that the said vibrations are a nuisance and a cause of danger and detrimental to the health of a large number of the inhabitants of the village; but there is no allegation of any noise or jar therefrom, much less of any extending beyond the power house. Ho fact is alleged to show a nuisance. ' The complaint is framed on the theory that it is enough to allege and on the trial prove that the board of health has declared a nuisance and ordered -it abated. This is erroneous. Its resolution and order were in no sense an adjudication (People ex rel. Copcutt y. Board of Health, 140 N. Y. 1). The complaint must allege facts constituting a-nuisance, and such resolution and order áre not evidence thereof. The judgment should be reversed and the demurrer sustained with leave, to the plaintiff to plead over. Hirsohbérg, P. J., Woodward, Rich and Miller, JJ., concurred. \ Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plead over on payment. *