The plaintiffs are the owners of lands upon opposite sides of Lincoln avenue in the borough of Queens, formerly in the town of Jamaica. Before the town became part of the city of New York a trunk sewer had been constructed in Lincoln avénue, and after the town, became a part of the present city, a deep trench was dug by the city authorities in the avenue, opposite, the plaintiffs’ lands, for the purpose of repairing the sewer. This trench obstructed the highway in front of plaintiffs’ lands, causing a nuisance, to abate which this action was brought.
The learned court at Special'Term found that the obstruction of the highway amounted to a public nuisance, by reason of which each of'the plaintiffs had sustained injury, and granted injunctive relief perpetually restraining the defendant from further maintaining the obstruction. Damages were awarded against the defendant in favor of the plaintiff Abraham Van Siclen in the sum of $2,850, and in favor of the plaintiff James Van Siclen in the sum of $500. The defendant appeals only from so much of the amended judgment as awards to the plaintiffs the sums above mentioned, and so- much, of the judgment as grants to the plaintiffs an additional allowance of five per cent.
No appeal having been taken from that part of the judgment which awards injunctive relief,- we may assume that the nuisance has been abated. It may also be assumed, in view of all the facts, that the nuisance was of a temporary nature.
Counsel for the defendant contends that the plaintiff Abraham is not entitled to any damages, because he was not in possession of the property and did not have the beneficial enjoyment thereof. No authorities are cited for this contention, but that Abraham was not in possession of the farm at the periods in question is evident from his own admissions on the witness stand, as follows:: “ When I speak *439of my son’s farm I mean the farm that is owned by me and occupied by my son; he pays me rent; he pays me the same rent now that he did two years ago ; the rent never has been changed; he pays me a nominal rent; he has paid me the same rent all along ; they hire all my land; I gave np farming ; four years ago I gave up the farm; * * * I am not doing any business myself at all; my son is doing it; * * * my sons do not work my farm on shares for me, they hire it of me — hire the farms of me.”
The' existence of a written lease does not appear, but the sons, at least, must have been tenants at will, and, therefore, entitled to notice to quit before termination of the tenancy. (Larned v. Hudson, 60 N. Y. 102.) According to Abraham’s own testimony the sons were in possession during the entire period of the nuisance, and he, therefore, is limited to his remedy for injury to the reversion, the general rule being that a reversioner cannot maintain an action in respect of a temporary nuisance. As has been said, “ The tenant alone is affected by a mere transitoiy injury to, or one that merely affects the present right of enjoyment of, the premises.” (2 Wood Nuis. [3d ed.] § 827.)
In Kernochan v. N. Y. E. R. R. Co. (128 N. Y. 559), after citing with appro sal Bedingfield v. Onslow (3 Lev. 209), which, with Baxter v. Taylor (4 Barn. & Adol. 72), held that in case of nuisance the landlord has his remedy for injury to the reversion ; the tenant for injury to the possession, the court say (p. 566) : “A reversioner, however, who by his lease has vested the immediate right of possession of the property in the lessee, sustains no legal injury from mere temporary or casual trespasses on the land. Such wrongs affect the possession merely and are to be redressed at the suit of the tenant.”
The same court, in Hine v. N. Y. E. R. R. Co. (128 N. Y. 571, 574), say : “ The owner of the property has his remedy for the injury done to the inheritance by a trespasser, as the tenant has his remedy for any injury done to the possession. In either case it is a matter of proof as to the damage sustained by the particular complainant, and neither litigant is the representative of the other in an action of trespass.”
In our view of the situation the cases cited by counsel for the respondents are not in point, for the reason that they refer to plain*440tiffs who were both owners and in possession of the properties in question, or to plaintiffs who, though landlords, were complaining of nuisances permanent in character and injurious to the reversion.
For these reasons the award of damages to Abraham seems improper.
The plaintiff James was both owner and in possession of- the land as to which his claim was made, and the award to him does not. appear excessive. - •
The judgment appealed from should be modified by striking out the award of damages to Abraham Van Siclen, and the award of additional allowance, and as modified affirmed, without costs of this appeal to either party. ■
Hirschberg, Jenks and Sewell, JJ., concurred; Goodrich, P. J., read for affirmance,