ten years have elapsed since it was docketed. (1910), 139 App. Div. 419, 124 N. Y. Supp. 14.

Saxe v. Peck

Where it is admitted that the object of an action instituted in plain violation of section 1913 of the Code of Civil Procedure upon a judgment by default was to increase the amount of the judgment so that summary proceedings could be instituted thereunder, the entry of the second judgment is unauthorized, but defendant has no standing in court except to move to open his default. Myers v. Klein (1916), 95 Misc. 546, 159 N. Y. Supp. 877.

ARTICLE III.

ACTION ON A PENAL BOND.

(Fiero, Spec. Act., 3rd Ed., pp. 1350-1357.)

A claimant's bond in attachment, being conditioned to pay $115, and to be void upon performance of a specific act, must, under section 1915 of the Code of Civil Procedure, be construed as if it were a covenant to pay the sum specified in the condition thereof, and recovery thereon is limited to that amount. Ehrlich v. Ringler (1909), 65 Misc. 15, 119 N. Y. Supp. 344.

Action to foreclose mortgage with bond that defendant would furnish plaintiff food, lodging, clothing, etc. Plaintiff is entitled, under section 1915 of the Code of Civil Procedure, to recover the amount of the bills for which demand of payment had been made and to bring successive actions for similar bills. Stuart v. Abbey (1909), 62 Misc. 84, 116 N. Y. Supp. 259.

Where, through the agency of the president of a national bank, the bank acquired corporate stocks the purchase of which was ultra vires of the bank and resulted in great loss to it, and the president and his son executed a bond to the bank upon the condition that it should be void if within two years the bank should sell the stocks and realize therefrom their cost to the bank, such bond was equivalent to a covenant on the part of the obligors to sell the stocks at cost within two years on account of the bank; and the failure of the bank to sell the same within two years was not a failure to perform a condition of the contract and is not a defense to an action on the bond. First National Bank v. Jenkins (1911), 73 Misc. 277, 130 N. Y. Supp. 947, affd., 151 App. Div. 893, 135 N. Y. Supp. 1111, affd., 209 N. Y. 547.

ARTICLE V.

ACTION ON LOST NEGOTIABLE PAPER.

(Fiero, Spec. Act., 3rd Ed., pp. 1358-1360.)

It is not necessary that plaintiff should offer indemnity to defendant, under the statute, before the action is brought, as that offer may properly be made in the first instance at the trial. Church v. Stevens (1907), 56 Misc. 572, 107 N. Y. Supp. 310.

It not appearing when the note in suit was lost and the complaint being dismissed at the very opening of the trial and before any opportunity had been given to plaintiff to furnish a bond of indemnity under section 1917 of the Code of Civil Procedure, a contention that the complaint was properly dismissed is without merit. Church v. Stevens (1907), 56 Misc. 572, 107 N. Y. Supp. 310.

MISCELLANEOUS ACTIONS ON BEHALF OF THE PEOPLE.
See PEOPLE, ACTIONS IN BEHALF OF.

MORTGAGE FORECLOSURE.
See FORECLOSURE.

MUNICIPAL OFFICERS, ACTION BY AND AGAINST.
See OFFICERS, ACTIONS BY OR AGAINST.

NEGOTIABLE PAPER, ACTION ON.

See MISCELLANEOUS ACTIONS AND RIGHTS OF ACTIONS.

"For time out of mind the term nuisance' has been regarded as incapable of definition so as to fit all cases, because the controlling facts are seldom alike, and each case stands on its own footing." Melker v. City of New York (1908), 190 N. Y. 481.

6

"The primary meaning of the word, suggested by its derivation, is that which injures, or, in the quaint phrase of ancient times, that which worketh hurt.' The injury may be to person or property, to health, comfort, safety or morality. It may be a crime. (Penal Code, § 385.) Courts of high standing have held that a nuisance at law, or a nuisance per se, exists only when the act done is a nuisance at all times and under any circumstances, regardless of location or surroundings. Other courts make fitness of locality the standard and give controlling effect to surrounding circumstances, holding certain acts not permissible as matter of law under some circumstances, but permissible under others and under others still not permissible if the jury find them nuisances as matter of fact. The weight of authority in this State and else where is in accordance with the latter view, except when the act is malum in se, when the surrounding circumstances have no bearing upon the question." Melker v. City of New York (1908), 190 N. Y. 481.

Unless malum in se a nuisance is a matter of degree; not the degree of care used, for that presents a question of negligence, but the degree of danger existing even with the best of care. Degree,

implies gradation, and gradation depends on circumstances. When the degree of danger is obvious and so extreme as to invite calamity, a nuisance per se exists, but, when the danger is so secret in nature that the cause of an accident cannot be discovered and according to all experience is neither imminent nor extreme, it is not a nuisance per se, although the jury may find it a nuisance in fact. Melker v. City of New York (1908), 190 N. Y. 481.

Whether any particular act is a nuisance, or not, depends upon the facts pertaining thereto. If the natural tendency of the act complained of is to create danger and inflict injury upon person or property, it may properly be found a nuisance as a matter of fact; but if the act in its inherent nature is so hazardous as to make the danger extreme and serious injury so probable as to be almost a certainty, it should be held a nuisance as a matter of law. A nuisance at law is a fact, but it is a fact so conclusive in legal effect as to be treated as a matter of law. Locality, surroundings, methods, the degree of danger and the custom of the country are the important factors. The firing of a cannon loaded with grape shot, if in a city or village, would be a nuisance as matter of law; if in a remote place far from the habitations of man, it might be a nuisance as a matter of fact, and if against the face of a precipice, no nuisance at all. Melker v. City of New York (1908), 190 N. Y. 481.

"The existence of a nuisance in many, if not in most instances, presupposes negligence." McNulty v. Ludwig & Co. (1912), 153 App. Div. 206, 208, 138 N. Y. Supp. 84. Nuisance involves the element of positive wrongdoing as distinct from mere acts of carelessness, whether of omission or commission. McCluskey v. Wile (1911), 144 App. Div. 470, 129 N. Y. Supp. 455.

While the custom of displaying and discharging fireworks upon public occasions may not be wide, it is a common and frequent method of celebrating public holidays and important public events, which is sanctioned by long usage and the practice of every community. An exhibition of fireworks is not, therefore malum in se, but is evil or not according to circumstances. Melker v. City of New York (1908), 190 N. Y. 481.

Noise which is necessarily and usually incident to the proper working of machinery is not a nuisance. Noise constituting a nuisance must be such as materially interferes with and impairs

the ordinary comfort of existence of ordinary people. There is no hard and fast rule as to what constitutes a nuisance, and that which would be a nuisance in one locality may not be such in another. Peck v. Newburgh Light, Heat & Power Co. (1909), 132 App. Div. 82, 116 N. Y. Supp. 433.

ARTICLE II.

GENERAL CLASSIFICATION AND DISTINCTION.

(Fiero, Spec. Act., 3rd Ed., pp. 1366-1372.)

SUBD. 1. Public and private nuisances distinguished.

2. What constitutes a public nuisance.

Subd. 1. Public and Private Nuisances Distinguished.

(Fiero, Spec. Act., 3rd Ed., pp. 1366-1368.)

The difference between public and private nuisances does not depend on the nature of the thing done, but on the fact that one affects the public at large and the other a limited number only. Melker v. City of New York (1908), 190 N. Y. 481, 488.

Subd. 2. What Constitutes a Public Nuisance.

(Fiero, Spec. Act., 3rd Ed., pp. 1368-1372.)

Public nuisance, within meaning of Penal Law, § 1530. See B., C. & G. Consol. L., 2nd Ed., Vol. 5, p. 5940.

"A public nuisance consists, among other things, in unlawfully doing an act or omitting to perform a duty, which act or omission unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, a public street or highway." McNulty v. Ludwig & Co. (1912), 153 App. Div. 206, 208, 138 N. Y. Supp. 84.

A distinction must be recognized between an actual unlawful obstruction in a highway, which is a public inconvenience, and is a nuisance as matter of law, and a theoretical obstruction which does not interfere with the customary use of the street, but which may be found a nuisance as a matter of fact. McCloskey v. Buckley (1918), 223 N. Y. 187, revg., 172 App. Div. 893.

Acts which interfere with the sanctity of the Sabbath as a day of rest and religious devotion, divert the mind from divine and