Citations
- 134 N.Y. 414
Full opinion text
Parker, J.
This action was brought to recover a penalty of fifty dollars for the alleged violation of an ordinance which if is claimed enjoined upon the defendant the duty of either filling with earth certain premises owned by him from which stone was formerly quarried, or draining therefrom the water with which it was nearly filled.
"With respect to its condition one witness testified: “ In the summer months, during July and August, I have smelled very offensive odors, such as usually arise from stagnant waters, and have noticed the green scum on the top of the water; it is so every summer; I have seen a dead dog in there at different times, or dead dogs in there at different times; I have observed the odor as I have been passing, but not so far away as my house; but when passing so much odor as to cause me to put my hand to my mouth.”
Another witness who had known the place for thirty years, said: “ In the spring of the year, as soon as the ice is off and it becomes warm, it is full of toads and bull-frogs, and a nasty greenish substance floating on top. Then in the bottom of it it grows up with eel grass, and in the summer months, when it is very offensive the odors arising from it- * * *. I have seen dead animals in there at different times, and dead fish floating in the water.”
A witness who had lived within two or three hundred feet, of the pond, testified: “ This odor I have observed is a strong, sickening odor; I passed by on the east side of the pond, but in warm weather have gone around on the west side on account of the odoi.”
The witness Slattery said: “ I have noticed a green scum on the pond and eel grass growing from the bottom; have the pleasure of hearing the bull-frogs nights * - *; the water in that pond I should think was stagnant; during the summer months it lowers in quantity; I have noticed that at times it is higher than at others; it is higher after rains.”
A witness who had known the premises twenty years and lived within one hundred and twenty feet of them, testified: £