Grant v. Town of Kirkland

• Citation: 24 Misc.2d 1087,208 N.Y.S.2d 888
• Parties: Mark A. GRANT and Eunice C. Grant, Plaintiffs, v. TOWN OF KIRKLAND, N. Y., Defendant.
• Decision Date: 22 July 1959
• Court: United States State Supreme Court (New York)

Page 888

208 N.Y.S.2d 888

24 Misc.2d 1087

Mark A. GRANT and Eunice C. Grant, Plaintiffs, v. TOWN OF KIRKLAND, N. Y., Defendant.

Supreme Court, Special Term, Oneida County.

July 22, 1959.

John B. Cosgrove, Clinton, for plaintiffs.

Edward C. Martin, Clinton, for defendant.

HENRY A. HUDSON, Justice.

The plaintiffs have moved for an order striking out paragraph 'Third' of the defendant's answer upon the ground that it is insufficient as a matter of law. Paragraph 'Third' of the defendant's answer reads as follows:

'As and for a further defense to the plaintiff's alleged cause of action the defendant alleges: That the plaintiff has failed to comply with the requirements of Section 50-e of the General Municipal Law as a condition precedent to the commencement of this action.'

The cause of action set forth in the plaintiffs' complaint is an equitable action brought to abate and remove an alleged nuisance resulting from the maintenance by the defendant, Town of Kirkland, of a town dump across the road from the plaintiffs' land. As a result thereof, the plaintiffs allege that their premises and personal property thereon, since the Spring of 1950, has been severely damaged. The plaintiffs seek a judgment abating and removing such nuisance and damages in the sum of $15,000.

It appears to this Court that the law is well settled that the provisions of section 50-e of the General Municipal Law, subdivision 1, which relates to tort actions, such as the one in the present case, do not apply so as to limit the right to equitable relief abating a nuisance. The cases, however, go further than this in respect to that portion of such a cause of action which relates to the recovery of damages. In respect to damages, the provisions of section 50-e may well afford a defense concerning those damages which accrued prior to the 90-day period for the filing of the claim . Sammons v. City of Gloversville, 175 N.Y. 346, 67 N.E. 622; Meinken v. County of Nassau, 14 Misc.2d 304, 178 N.Y.S.2d 529; Jayne v. East Hills Water District, 6 Misc.2d 676, 164 N.Y.S.2d 284; Foster v. Webster, 8 Misc.2d 61, at page 63, 44 N.Y.S.2d 153, at page 156; Bernstein's Duck Farm v. Town of Brookhaven, 21 Misc.2d 953, 71 N.Y.S.2d 311.

The defendant relies primarily upon Thomann v. City of Rochester, 256 N.Y. 165, 176 N.E. 129. This case has been held not to overrule Sammons v. City of Gloversville, supra, but construed a much more limited statute. Foster v. Webster, supra; Meinken v. County of Nassau, supra. The statute considered in the Thomann case is not comparable with the provisions of section 50-e.

While I do not consider that the provisions of section 50-e, subdivision 1 would...