matter in controversy to one or more disinterested persons, to be approved by the surrogate. On filing such agreement and approval in the office of the clerk of the supreme court in the county in which the parties or either of them reside, an order shall be entered by the clerk referring the matter in controversy to the person or persons so selected. On the entry of such order the proceedings shall become an action in the supreme court," etc.

These two sections are not to be read or construed together. They are entirely independent. They relate to entirely different conditions. The short statute of limitations springs from the operation of the provisions of section 1822, but not of section 2718; hence, if the provisions of the former section are applicable to this case, the claims are barred, no action having been commenced and no consent filed that the claims might be determined by the surrogate within the statutory period. If, on the contrary, the phraseology of the notices served, the conduct of the parties and their attorneys, and all the attendant circumstances indicate that it was the intention and understanding of the parties that these claims were to be disposed of in some legal manner, then the case is governed by the provisions of section 2718, and the claims are not barred.

The adjudicated cases agree that nothing short of an absolute, definitive, and unequivocal rejection of a claim will subject the same to the forfeitures provided for in section 1822 of the Code. In Hoyt v. Bonnett, 50 N. Y. 538, Allen, J., considering this proposition, says:

"To entitle an executor or administrator to the benefit of the short statute of limitations, by which one having a claim against the estate of a deceased person may be barred of his action and forfeit his claim, the representative of the estate must, in all essentials, comply with the statute creating the bar. Neither the statute nor the acts of executors or administrators under it are to receive a liberal interpretation or to be extended by implication beyond their natural and ordinary import. * Justice to the claimant, as well as the reasonable interpretation of the statute requires that the act of the executor or administrator, in disputing or rejecting the claim, which is to put the claimant to an action within the brief period prescribed upon pain of forfeiting his claim, should not be ambiguous or equivocal, capable of two interpretations, but decided, unequivocal, and absolute-such an act as will leave no reasonable doubt that the claim is definitively disputed or rejected, so that the claimant will be without excuse for not resorting to his action within the time required to save his claim."

This authority is cited in Ulster County Savings Inst. v. Young, 161 N. Y. 23, 55 N. E. 483, where Martin, J., in the opinion, says:

"The statute is penal in its character and should be strictly construed. * * Before this statute can be invoked by a representative as a bar to the claim against the estate he represents, a notice requiring the presentation of claims must be published, a claim in writing must be presented to the executor or administrator, and it must be plainly disputed or rejected by him."

To the same effect are Potts v. Baldwin, 67 App. Div. 434, 74 N. Y. Supp. 655; Reynolds v. Collins, 3 Hill, 36; National Bank of Fishkill v. Speight, 47 N. Y. 668; Miller's Estate, 9 N. Y. Supp. 60; Calanan v. McClure, 47 Barb. 206.

The phraseology of the notice in this case merely expresses a doubt in the mind of the executor regarding the validity of the claims. It contains no words of positive final rejection; but, on the contrary, it expresses a willingness on the part of the executor to co-operate with the claimants in securing definitive judicial investigation of the merits of the claim. It makes no reference to section 1822 of the Code, but distinctly proposes that the claims be disposed of pursuant to the provisions of section 2718. The agreement of the attorneys to refer, the reasons presented by the executor's attorney for not immediately agreeing upon a referee, and the statements contained in the affidavit filed by the executor upon the return of citation to show cause, all plainly indicate that none of the parties understood that the executor had taken such final and definitive action regarding these claims as to bring them under the operation of section 1822 of the Code.

Under the conditions disclosed by the testimony of the executor's attorney, fully corroborated by the testimony of Mr. Curtis, the former attorney for the claimants, it would be unreasonable to hold that these claims were barred by the provisions of section 1822 of the Code. Matter of Eichman, 33 Misc. Rep. 322, 68 N. Y. Supp. 636. In the case last cited, the phraseology of the notice was substantially the same as the notices served in this case, and Abbott, S., held that it was insufficient to set the short statute running.

This proceeding will stand adjourned to February 11th, 11 a. m., and, if it then appears that legal proceedings have been instituted for the enforcement of these claims, the accounting will be stayed until final termination of such proceedings.

Decreed accordingly.

PECK v. NEWBURGH LIGHT, HEAT & POWER CO. (Supreme Court, Appellate Division, Second Department. April 30, 1909.) 1. NUISANCE (§ 3*)-PRIVATE NUISANCE-UNREASONABLE USE OF PREMISES.

Where a person selected his home adjoining an electric light and power plant which had been in operation for a number of years, the operation of the plant would not constitute a private nuisance as to him, unless its use for the business carried on was unreasonable.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. § 4; Dec. Dig. § 3.*] 2. NUISANCE (§ 3*)—Noise—Extent of INJURY.

Noise, to constitute a nuisance, must be such as materially to interfere with and impair the ordinary comfort of existence on the part of ordinary people, and noise from engines in a power plant, which was not a bar to conversation held even in close vicinity to the engines, was not a nuisance. [Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 26, 28; Dec. Dig. § 3.*]

3. NUISANCE (§ 4*)—APPLICATION OF MAXIM, "SIC UTERE," ETC.

The maxim, "Sic utere," etc., as applied to nuisances, does not mean that one must not annoy, but that one must not injure.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. § 26; Dec. Dig. § 4.*]

4 NUISANCE (§ 3*)-UNREASONABLE USE OF PREMISES.

The unreasonable use that will constitute a nuisance cannot be declared as by a hard and fast rule, but depends upon the locality.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. § 4; Dec. Dig. 8 3.*]

5. NUISANCE (§ 3*)-ACTS CONSTITUTING-VIBRATIONS.

Vibrations may constitute a nuisance.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. § 23; Dec. Dig. § 3.*]

6. NUISANCE (§ 37*)-ACTIONS-OPPORTUNITY TO CORRECT CONDITION.

Where it appeared that the vibration of engines in a power plant, which constituted a nuisance, could be corrected by putting proper foundations under them, the owner should be allowed a reasonable time in which to make the correction.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. § 96; Dec. Dig. § 37.*]

Appeal from Trial Term, Orange County.

Action by Abel Peck against the Newburgh Light, Heat & Power Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted, unless plaintiff stipulates to modify judgment. Argued before WOODWARD, JENKS, RICH, and MILLER, JJ. Arthur F. Gotthold (John L. Wilkie, on the brief), for appellant. Graham Witschief, for respondent.

JENKS, J. This case presents a question of a private nuisance. The plaintiff complained that, incidental to the defendant's lawful business of supplying electric light, electric power, and heat to the public, there were specific features which affected materially his peace and comfort and depreciated the value of his property. After hearing much evidence, the learned referee found that ashes, soot, cinders, and steam vapor emitted from the defendant's plant were precipitated

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 116 N.Y.S.-28

from time to time upon and in the neighborhood of the plant, and, when the wind was right, upon the plaintiff's dwelling and premises; that frequently at irregular intervals steam was discharged with a loud noise (such as proceeds from a locomotive blowing off steam) for several minutes, so as to interfere with the repose of the plaintiff and his family at night, and with their conversation; that bright flashes of light came frequently from the plant, illuminating the neighborhood, accompanied by a loud noise; that jars and vibrations, caused by the operation of the defendant's machinery, shook plaintiff's dwelling and its doors and windows (and caused objects on the shelves and walls therein to vibrate and to rattle), sometimes to a greater extent than others, sometimes for several hours without cessation, sometimes for shorter intervals, so that appliances placed in the said windows to stop the vibration and rattling were ineffective, and so that objects on the walls were misplaced, and the repose of the plaintiff and his family was interfered with; and that these jars and vibrations were greater at night than in the day. The learned referee, as a conclusion of law, determined that these acts of the defendant constituted a nuisance, and that the plaintiff was entitled to an injunction

"restraining the defendant, from and after 60 days from notice of the entry thereof, from so using its plant and premises, and its machinery therein and thereon, located on Montgomery street, in the city of Newburgh, Orange county, New York, and from so conducting its business thereon, and from so permitting the said premises and buildings to be used, and its business to be thereon conducted, that loud and disturbing noises proceed therefrom, that ashes, soot, and cinders are emitted therefrom and deposited in and upon plaintiff's dwelling and premises, that steam vapor or spray is emitted therefrom and deposited in and about the neighborhood of and upon plaintiff's dwelling, and that plaintiff's dwelling and articles and objects therein contained are caused to jar and vibrate, to the extent, as to any or all of said particulars, of producing material annoyance to plaintiff, and of materially and substantially interfering with the quiet and peaceful enjoyment and occupancy of said premises of said plaintiff; that said plaintiff is also entitled to judgment against said defendant for the sum of $310, rental damages sustained by plaintiff from the 12th day of November, 1900, to the 13th day of January, 1906, besides the costs and disbursements of this action."

Although I think that the plaintiff is not barred by any prescriptive rights of the defendant, for the reason that the proof does not show that the plant, either as to its present extent or in respect to the incidental features of its working complained of, had existed for a sufficient period of time (Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567; American Bank Note Co. v. N. Y. El. R. R. Co., 129 N. Y. 252, 29 N. E. 302), yet, but for the judgment of Ackerman v. True, 175 N. Y. 353, 67 N. E. 629, I would advise that any injunctive relief to the plaintiff be denied, for the reasons that he came "to the nuisance" and thereafter suffered this business not only to be conducted for a number of years, but that he must have seen during that period the defendant make large outlays of money upon this permanent plant, all without any complaint or objection to the features incident to the working of the plant of which he now complains. The question is whether the defendant's use of its premises.

Co., 189 N. Y. 40, 50, 81 N. E. 549, 551, 13 L. R. A. (N. S.) 465. In that case Vann, J., for the court, says:

"The use made of property may be unpleasant, unsightly, or, to some extent, annoying and disagreeable to the occupants of neighboring property, without creating a nuisance. When, however, it not only interferes materially with the physical comfort of persons in their own homes, but also causes some financial injury to the owner, it constitutes a nuisance."

I think that the evidence does not establish that the "noise, ashes, soot, cinders, steam vapor, and steam escape and flashes of light" constitute a nuisance as to the plaintiff. That there was once considerable noise I do not doubt. But the evidence convinces me that the offensive part of it has ceased, due to the improvements made from time to time in installation or in the working of the plant, and it does not show that at the time of the trial there was noise other than that necessarily and usually incident to the proper working of machinery. Indeed, there is considerable testimony that such noise is not a bar to conversation held even in close vicinity to the engines. This is not sufficient to constitute a nuisance. Hughes v. General Electric Light & Power Co., 107 Ky. 485, 54 S. W. 723; McCann v. Strang, 97 Wis. 551, 72 N. W. 1117. The rule is that the "noise must be such as materially to interfere with and impair the ordinary comfort of existence on the part of ordinary people." Joyce on Nuisances, § 182, citing authorities. See, too, Wood on Nuisances, § 617; Froelicher v. Oswald Iron Works, 111 La. 705, 35 South. 821, 64 L. R. A. 228, and cases cited. The evidence does not establish that there is any soot. The defendant (save in the single instance of a crisis) burns anthracite, which does not produce soot. There is soot in the neighborhood, but several of the defendant's witnesses testify that it is from the West Shore Railroad. The great preponderance of the evidence is that of the ashes (which from anthracite can be but slight) but a small residuum escapes from the premises of the defendant, that the escape of steam is slight, and that the flashes of light, being accidental, not incidental, are infrequent.

When the plaintiff selected his home within the sounds of a city, he could not expect the silence of the country. He could not expect that the circumambient air would be altogether free from the smoke and the other pollutions from the houses, shops or factories. If, like Lord' Byron, he found "the hum of cities horrible," nevertheless he had to recognize that he could not either quiet it or purify the air by halting men's business within the radius of his absolute comfort. When, as in this case, he came to this quarter of the town, where this business had long been maintained, he was bound to recognize the conditions. and the incidents thereof. The maxim, "Sic utere," etc., as applied to such a case, does not mean that you must not annoy, but that you must not injure. The unreasonable use that constitutes a nuisance cannot be declared as by a hard and fast rule. Chief Judge Cullen well observes that:

"Such an emission of smoke as would constitute a nuisance in the city of New York might afford no just ground for complaint in Pittsburg." Bates v. Holbrook, 171 N. Y. 475, 64 N. E. 181, 185.