Section 1902 of the Code of Civil Procedure provides that the representatives of decedents leaving next of kin “ may maintain an action to recover damages for a wrongful act, neglect or default, by *319which the decedent’s death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued.”
The test of the defendant’s liability in this action to this plaintiff is, would it have been liable to Ellen Hughes, the decedent, for the damages caused by her sickness, if she had recovered ?
It is well settled that in case a municipality negligently discharges sewage on to or near realty, or maintains a nuisance by the management of its sewers on or near realty, to its injury, the owner of it may recover the damages sustained. (Hardy v. The City of Brooklyn, 90 N. Y. 435; Seifert v. City of Brooklyn, 101 id. 136; City of Bloomington v. Murnin, 36 Ill. App. 647.) It is not necessary, in order to create a right of action, that the land be physically injured, or that the nuisance be on the land, or that any visible material substance flowing from the nuisance shall actually enter on the premises. In the case at bar, the nuisance was on the lot owned and occupied by the mother of the decedent, with whom the decedent resided, but in which the latter had no legal interest.
Since the defendant was incorporated as a city, it has had power to construct and maintain sewers. (Laws of 1848, chap. 106, tit. 6; Laws of 1859, chap. 431, tit. 7; Laws of 1869, chap. 273, tit. 10; Laws of 1879, chap. 53, tit. 10.)
Sewers are designed to protect, not to injure, the health of the citizens of the municipality in which they are constructed, and the plaintiff urges that the defendant having willfully violated an affirmative duty which it owed to its citizens by creating and maintaining a nuisance,.it is liable for the injury to the health of a citizen lawfully residing on, though without a legal interest in, the premises affected by the nuisance.
In Kavanagh v. Barber (59 Hun, 60; revd., 131 N. Y. 211) the legal title of the house and lot was in the wife. After the wife acquired the lot, the husband built a dwelling thereon, which was occupied by the plaintiff, his wife and their children, the husband supporting the family. The defendant maintained a nuisance on the opposite side of the street, which emitted unwholesome gases and stenches, rendering the air of the dwelling owned by the wife and occupied by the family foul and unwholesome. In an action brought by the husband, it was' alleged in the complaint that he and *320his family had been deprived of the use of part of the house; that his wife and children had been made sick by the smells and stenches, from the effects of which one of his daughters died, and that the plaintiff had lost the services of his wife and children by reason of the nuisance, and had been compelled to pay for medical attendance on account of their sickness. On the trial the court instructed the jury that the plaintiff, not- being the owner of the premises, could riot recover the damages occasioned by them, but that he could recover such damages as he had sustained by being deprived of the services of his wife and children, and for such sums as he had necessarily expended for medical attendance. The plaintiff had a verdict for $200. The judgment was affirmed at General Term, but ■ was reversed by the Court of Appeals, which held that the husband, having no legal interest in the. premises, not only could not recover. for any injury to them, but could not recover for damages occasioned by the sickness of his family. In the course of the opinion the court said : -‘We have found no case where a private action has been maintained for corruption of the air by offensive odors, except by a plaintiff who was the owner of or had some legal interest, as lessee or otherwise, in land the enjoyment of which' was affected by the nuisance.”
I have been unable to -find a case in which it is.held that a person, living on premises as a member of the family of the owner, may recover damages for the loss of health caused by a nuisance rendering the premises unfit for habitation. The fact that no authority is found is not conclusive that one ought not to be found or made, for the law is a progressive science; but when rio authority can be found supporting an alleged cause of action, courts should proceed with caution.
The father not having the right to recover for the loss of the services of his children, or the sum expended for medical attendance upon them, because he had no legal interest in the premises affected by the nuisance, it seems to follow that his children, having no interest in the premises, could not have sustained an action for their loss of health and suffering occasioned by the nuisance. It is a general rule that, when a wife or a minor child has a right of action for damages arising from .a neglect or a nuisance, the husband or father-has a right of action .to recover for the loss of service and the snm *321expended in the cure of the wife or child. In the case cited the defendant’s duty was a negative one, while, in the case at bar, the defendant owed a positive duty to its citizens so to construct and maintain its sewers as to promote and not destroy the health of its citizens. In this respect the two cases are unlike, nevertheless, it •seems to me that the case cited controls the one now before the court, and, without discussing the principles underlying this case, that it is our duty to hold thqt Ellen Hughes would have had no right of action had she recovered from her sickness, and, consequently, her representative has none.
The plaintiff’s motion for a new trial should be denied and a judgment ordered in favor of the defendant on the verdict, with costs.
Motion for a new trial granted and a new trial ordered, with costs' to abide the event.