I am unable to concur in the conclusion reached by the majority of the. court in this case. In principle, I think the facts shown upon the trial bring the case within the doctrine announced in Garvey v. Long Island R. R. Co. (159 N. Y. 323). The evidence fairly established that in the use which' was made by the defendants of their yard a nuisance, was created, from which the plaintiff suffered special injury, and that the legislative authority to maintain and operate a railroad does not justify, and did not in this case, the creation of such nuisance. The method by which the nuisance was created is not of consequence if it exist. It being shown that special injury was occasioned to the plaintiff therefrom, his right, of action accrued and the authority to maintain and operate thé railroad was not a defense to the action. The learned court below was, therefore, in error in dismissing plaintiff’s complaint, for which reason the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Judgment affirmed, with costs.