A L^LKA IN BK1IALE OF LAW akd order. How a Village Trustee can Destroy a Village. The Affidavits of several civil engineers and physicians, showing that the Odell Ice Pond is a nuisance, which will necessarily produce noxious, offensive and poisonous effluvia, miasma, malaria, intermittent fever and zymotic disease. Shall we be compelled to abandon our homes ? 1879. A PLEA In Behalf of Law and Order. A petition has been presented to the Board of Health of the Village of Greenburgh (better known as Dobbs Ferry) signed by James Wilde, Jr.,. R R Tyers, John W. Cooper, Jasper Stymus, John B. Cooper and others, setting forth that, in the judgment of the petitioners, "the mala- rial disorders so prevalent in this section of the village are clearly traceable to the neglected, choked and defiled condition of the Willsea Brook, and that it that be rem- edied, there will be speedy abatement of the distressing maladies which afflict so many families, and that the Board of Health will incur a grave responsibility if they permit this neglected portion of the village to remain longer in the condition in which it now is." The petition was accompanied by the affidavits of several persons, charging that the brook and ponds thereon were highly detrimental to the public health. In compliance with this petition, and after personal exam- ination, the Board issued the following orders: "That all brush growing on the banks of the stream be cut down ; that the course of the stream be cleared of such obstruc- tions as had been placed, or had been allowed to accumu- late in it; and that it be straightened so far as the same could be done inexpensively, and that the large swamps near Jasper Stymus' residence and the Loan slaughter- house be drained." It was understood that these orders could be complied with at trifling expense, and would sim- ply restore the brook and the adjacent lands to the con- dition they were in when they came into the posession of the family of the present owners. 2 The Boards of Health of the Villages of Tarrytown, Irvington and Dobbs Ferry, in a joint meeting, unani- mously declared all ponds which are flooded only a por- tion of the year to be nuisances. On the strength of this declaration, fortified by special affidavits of Dr. Pooley, Dr. Jenkins, Dr. Hasbrouck, Dr. Carruthers, Dr. Prince and Dr. Fulton, and a long list of experts, the Dobbs Ferry Board passed a resolution prohibiting the flooding of the Odell ice pond. This order was duly served on the tepresentative and guardian of the infant owners, and on the occupant of the premises. No attention whatever was paid to it. After the pond had been flooded two orders, varying only in form, were issued, ordering and directing the dam to be removed and the water to be drawn. These have not as yet been obeyed. The officer serving this last order was directed by the occupant to say to the President of this Board that he was determined to fight. The premises, on which this defiled and neglected brook runs for nearly a mile, on which there are two large and rapidly increasing swamps, and on which is the dam or pond in question, are the property of two minor children, Richard Suydam Palmer and John Arnot Palmer. This land, with other property, was awarded to them as part of their interest in the estate of the late Courtlandt Palmer, their grandfather, by decree of the Supreme Court dated November 10, 1876. By virtue of this decree real estate estimated as worth many millions of dollars was.partitioned and distributed, and it is boasted that these boys on arriving at their majority will be among the richest persons in the world. Their guardian, Dr. Henry Draper, who assumes to represent the children in the control of this property, has repeatedly stated that it was the policy of the estate to allow the place to run down so as to reduce taxation. At any rate the dilapidated fences, and the neglect every- where apparent is in painful contrast with the thrifty sur- roundings of the adjacent places. The Board of Health believed that all orders issued by them simply required 3 that the premises be restored to the sanitary condition they were in ten years ago, nothing more. These are the only orders ever issued by the Board, that have not been cheer fully complied with. In the hopes of avoiding the necessity of litigation, the President of the Board called on Dr. Henry Draper, who controls the property for the children, and who is one of their guardians, and stated that the Board of Health were engaged in a work from which there could be no possible individual personal advantage; that they are actuated solely by a desire to add to the health, comfort and pros- perity of the village; that they earnestly desired to avoid all conflict, and that if they had erred in any of their orders they would cheerfully make corrections. He was assured, in reply, that no attention would be paid to the orders of the Board of Health ; that the property would be managed by the owners to suit themselves, without regard to the views or wishes of the neighbors, and despite the village. It is obvious that the Board, having thus tauntingly been defied, will be compelled to appeal to the Courts, or else abandon all efforts to maintain the public health in the neighborhood hereafter. It is also certain that unless these growing swamps can be drained and the periodic flooding of the ice ponds forever stopped, many families will be driven from the neighborhood, and be compelled to abandon their homes. A suit has been brought by Frederick J. Stone, who, with his family, have, perhaps, been of all those residing in the neighborhood of the pond the most seriously injured, to compel the removal and abatement of the dam or pond, and to perpetually enjoin its continuance or renewal. The sworn complaint of Mr. Stone, which contains^ a map of the pond, together with some of the affidavits of the physicians and experts annexed, upon which he has, as we understand, already obtained an injunction, are printed herewith, and show conclusively the character of 4 the brook and pond, and its effect on the health of those living in the vicinity. If, as it is claimed, malarial diseases are prevailing everywhere, why is it that there has ' not been a known case in the southerly half of the village of Dobbs Ferry ? Every house in the vicinity of the dam or pond in controversy is filled and surcharged with mala- ria. Physicians and engineers have examined it, and sivear that it is the sole ascertainable cause of the chills and fever and malarial diseases prevalent thereabouts. Worse even than this, it would seem that the periodic flooding of this pond with water polluted with animal excre- tions and filth will cause zymotic diseases, such as typhoid fever, diphtheria, erysipelas, &c., and has already caused three deaths. We cannot tell how many, poisoned by the malaria therefrom, have succumbed to other diseases. How quickly would any epidemic disease sweep away our wives and children, impoverished and weakened, as they needs must be, slowly but surely, by this insidious and fatal malaria. We hear it said that the attempt to abate and remove these nuisances is an attack of the rich against the poor. How malicious, how wicked, how false this is, is clear when we reflect on the boasts by the tenant and occupant, as well as by their guardian, that the Palmer boys, who are the owners of this property, and whose money, we are told, is to be freely used in fighting and opposing the abatement and removal of these nuisances and any sani- tary reform, will, on attaining their majority, be not merely very rich, but among the richest in the world. We see, then, that the so-called attack is not against the poor, but against the immensely rich. But if these nuisances be maintained and continued, who must suffer the most, the rich or the poor? If there be no redress, the rich man can sell, or even abandon his home and go elsewhere, while the poor man, who, even now, has to take from his hard-earned wages to buy qui- nine and drugs that which he ought to spend for beef and 5 bread, will have to stay and bear his trouble and disease, and see his innocent .children suffer, and, if not swept off to an untimely grave, at least grow up weak, puny, and unfit to earn their daily bread. What greater crime can there be than to fill a village with disease and death? The following explains itself: NEW YORK SUPREME COURT. County of Westchester. Frederick J. Stone, Plaintiff, against Moses T. Odell, Richard Suy- dam Palmer and John Arnot Palmer, Defendants. Summons. To the above-named Defendants: You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff's attorney, within twenty days after the service of this summons, exclusive of the day of service, and in case of your failure to appear or answer, judgment will be taken against you by default, for the relief demanded in the complaint. Dated New York, January 8, 1879. Frederick J. Stone, Plaintiff and Attorney in person, Office and Post Office Address, No. 55 Liberty street, New York City. 6 NEW YORK SUPREME COURT, County of Westchester. Frederick J. Stone vs. Moses T. Odell, Richard Suy- dam Palmer and John Arnot Palmer. The plaintiff above named complains of the defendants and alleges: I. That the said plaintiff was at the times hereinafter mentioned, and now is, the owner and occupant of certain lands with the dwelling house thereon erected, situate in the town of Greenburgh, county of Westchester, and State of New York, which said lands are bounded as fol- lows : On the north by lands of Grace F. Lindley, on the east and west by lands of Cyrus AV. Field, and on the south by lands of the defendants, Richard Suydam Palmer and John Arnot Palmer, and are more fully described on the map hereunto annexed and marked Schedule "A." II. That the defendants, Richard Suydam Palmer and John Arnot Palmer, were at the times hereinafter men- tioned, and now are, the owners of certain other lands in the town of Greenburgh aforesaid, immediately adjacent to and south of the said lands and dwelling house of the plaintiff and lands of Cyrus W. Field, and east of lands of Jasper Stymus and the Highland Turnpike (now known as Broadway), which said lands were at the times hereinafter mentioned and now are leased to, and occupied by, and in the charge of the defendant, Moses T. Odell, and are more fully described on the map hereunto an- nexed as aforesaid, and marked Schedule "A.'' 7 III. That the defendant, Moses T. Odell, heretofore by the erection, maintenance and continuance of a dam across the Willsea Brook, a stream flowing through the lands of the defendants, Richard Suydam Palmer and John Arnot Palmer, last herein above described, has wrongfully and unlawfully created, maintained, and con- tinues to maintain, upon the said last mentioned lands, adjacent as' aforesaid to the plaintiff's said dwelling, and distant therefrom about twelve hundred (1200) feet, a pond of shallow, impure and polluted water, filled with decomposed and decomposing animal and vegetable organic matter, periodically flooding the adjacent meadow lands to the extent of more than six (6) acres, from which said pond and from which said flooded lands, when the water has been partially or wholly withdrawn, or has evaporated, and from the marsh and swamp thereby formed and aggravated, there emanated noxious, offensive and poisonous effluvia, miasma, malaria, exhalations and smells tainting, poisoning and corrupting the atmosphere, so as to render the said dwelling house and premises of the plaintiff unfit and unsafe for habitation, so that the plaintiff and Iris family and his employees became sick with malaria, chills and fever and intermittent fever, to the great damage of the plaintiff and to the nuisance of the said lands and dwelling of the plaintiff; which said dam or pond of water is more fully described and desig- nated on the map hereunto annexed as aforesaid, and marked Schedule " A." IV. That by reason of the making, maintaining and continuance of the said dam or pond of water the plaintiff has been repeatedly compelled, for the sake of the preser- vation of his life and the recovery of his health, to leave his said residence and go elsewhere and to incur large ex- pense thereby, and the said lands of the plaintiff are greatly reduced in value, and his said dwelling house has become almost worthless for the purpose of a residence for himself and his family, and that the continuance of the said nuisance 8 will be a special injury to the premises and residence of the said plaintiff, and not only affect the health of the plaintiff and his family and greatly depreciate the value of his said premises and dwelling, and render the occupancy thereof as aforesaid as a residence, hazardous to the health and life of the occupants of the same, but also make it necessary for the plaintiff and his family to abandon his said dwelling and premises, and take up his residence elsewhere. V. That due notice was given to the defendants that the making, maintaining and continuance of the said dam or pond of water was a nuisance and of detriment to the health of the plaintiff and his family, and that the plaintiff would hold them personally responsible therefor. Wherefore the plaintiff brings suit and demands judg- ment against the defendants: 1st. That the said nuisance, to-wit, the said dam, or pond of water aforesaid, be abated and removed, and the defendants be enjoined to remove all obstructions to the running of the water in the said stream or brook. 2d. That the defendants be perpetually enjoined and restrained from making, maintaining, continuing and re newing the said pond by means of a dam or otherwise. And that the plaintiff have such other and further relief as may be just and equitable besides the costs of this action. Frederick J. Stone, Plaintiff and Attorney in person, Office and P. 0. Address, 55 Liberty St., New York City, N. Y. 9 County of Westchester, State of New York, ss. Frederick J. Stone, the plaintiff above named, Attorney in person, being duly sworn says that he has read the foregoing complaint and knows the contents thereof, and the same is true of his own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those he believes the same to be true. Frederick J. Stone. Sworn to before me this / 9th day of January, 1879. f J. S. Millard, Notary Public, Westchester Co. 10 NEW YORK SUPREME COURT. County of Westchester. Frederick J. Stone vs. Moses T. Odell, et al. City and County of New York, ss.: Frederick J. Stone, the plaintiff, being duly sworn, de- poses and says : That the grounds of this action are set forth in the an- nexed complaint which is verified by the oath of the plaintiff. That on the 28th day of April, 1876, the plaintiff and his famil y moved into and occupied, and now occupy the land and dwelling of the plaintiff mentioned and de- scribed in the complaint. That during the month of November, 1876, the de- fendant, Moses T. Odell, made and erected the dam or pond of wrater mentioned and described in the complaint, which said dam or pond of water the said Moses T. Odell now maintains to the great nuisance of'the plaintiff. That the plaintiff and his family while residing in plain- tiff's said dwelling house enjoyed good health and freedom from malaria and intermittent fever until the making and maintenance of the said dam or pond of water, and the flooding of the adjacent meadow lands, and the letting off, withdrawal, or evaporation of the water of the said pond in the spring'of 1877. That shortly thereafter, to wit: in the spring of 1877, the plaintiff and his mother-in-law and his employees became repeatedly and dangerously ill with intermittent fever and malarial diseases, which deponent was, and is advised by Dr. Horace Carruthers, Dr. J. Foster Jenkins. 11 and other physicians, and verily believes was caused by the making and maintenance of the said dam or pond of water, the flooding of the adjacent meadow lands, the marsh and swamp thereby formed and aggravated, and the letting off. withdrawal, or evaporation of the water thereof. That by reason thereof the plaintiff and his said family then were, and since have been obliged to remove from the plaintiff's said residence, and go elsewhere for the sake of the recovery of their health. That by reason of the making, maintenance, and con- tinuance of the said dam or pond of water, the adjacent meadow lands, to the extent of more than six acres, adja- cent to the plaintiff's said dwelling house, and distant therefrom about twelve hundred feet, are periodically flooded with a shallow depth of impure water, which is defiled with slaughter house refuse, and the animal filth of great numbers of hogs as well as other pollution. That such flooding tends to obstruct the course of the Willsea brook by the silt and rubbish brought down and deposited in its channel, and interferes with its action as a drain, and renders the meadow lands so flooded, marshy, and aggravates their natural swampy character, and that by reason thereof the said lands are covered and saturated with animal and vegetable decomposed, and decomposing- organic matter which, when the water of said pond has been let off, withdrawn, or evaporated, has caused for a considerable time thereafter terrible noxious, sickening, and pestilential miasma, malaria, stenches and smells, and will again in the warmer weather at spring produce the same, so as to render the occupancy of plaintiff's said dwelling hazardous to the health and life of the occupants, and subject the plaintiff and his family to malaria and malarial diseases. That the defendant, Moses T. Odell, admitted to depo- nent at various times, and particularly in the presence of Anne K. Holmes, whose affidavit is also annexed, that 12 the waters of the said Willsea brook were defiled and polluted as aforesaid, and that that was the cause of the stenches arising from the meadow lands flooded as afore- said, after the letting off, withdrawal, or evaporation of the water of the pond. That due notice has been given repeatedly to the de- fendants that the said dam or pond of water, and the making, maintenance, and continuance of the same was of special nuisance to the lands and dwelling of the plaintiff, and injurious to the health of the plaintiff and his family, and that the plaintiff would hold them personally responsi- ble therefor. That the defendants refuse to abate or remove the same. That deponent is informed and advised by Doctor Horace Carruthers, Doctor J. Foster Jenkins, Doctor Jo- seph Hasbrouck, Doctor James H. Pooley, Doctor J. Bor- den, Dr. Fulton, and Doctor Christopher Prince, whose affi- davits are hereto annexed, as well as by other physicians, and by George E. Waring, Jr., and Ward Carpenter, Sanitary Engineers, whose affidavits are also hereto an- nexed, and others who have examined the same, that the said dam or pond of water should be at once abated and removed. Sworn to before me this ) Erfde kick T Stonf 18th day of January, 1879, f L REDEKICK J • bl0NE- R. A. Adams, Notary Public, City and County of New York. 13 NEW YORK SUPREME COURT, Westchester County. Frederick J. Stone vs. Moses T. Odell et al. County of Westchester and State of New York, ss : Anne K. Holmes, being duly sworn, deposesand says: That she is acquainted with the lands and dwelling of the plaintiff, and the dam or pond of water mentioned and described in the complaint, and has personally examined the same. That she is the mother of plaintiff's wife, and has resided in the family of the plaintiff for nearly four years, and in the said dwelling-house of the plaintiff since the 28th day of April, 1876, upon which day the plaintiff and his family, including deponent, moved into and occupied the said house, and that the plaintiff and his said family, including deponent, have enjoyed good health and con- tinued to enjoy the same while residing and living in the plaintiff's said dwelling, until shortly after the water in the said dam or pond (which dam or pond was first made and erected in the month of November, 1876) was low- ered and drawn off in the spring of 1877. That then-to wit, in the Spring of 1877, and also shortly after-the said dam or pond was lowered or drawn off in the Spring of 1878, the plaintiff and various mem- bers of his family, including deponent, became danger- ously sick with chills and fever and malarial disease of a dangerous character. That until after the said dam or pond was lowered and drawn off, the deponent had never experienced or suffered any malarial disease whatsoever. 14 That by reason of the making, maintenance and con- tinuance of the said dam or pond of water the adjacent meadow lands are periodically flooded with a very shallow depth of impure and polluted water, filled with decom- posed and decomposing vegetable and animal organic matter. That the said dam or pond of water, and the marsh or swamp thereby formed and aggravated, and the said lands so flooded when the water has been wholly or partially withdrawn, or has evaporated, lias produced noxious and offensive miasma, malaria, exhalations and stenches and smells, poisoning, tainting, corrupting and vitiating the atmosphere to the great nuisance and injury of the health of the plaintiff and his family. That the plaintiff has been compelled, by the advice of physicians, in order to preserve his life, and for the sake of the recovery of his health, to move away from his said residence with his family and go elsewhere. That the said dam or pond of water, and the marsh or swamp thereby formed and aggravated, is an active and virulent source and cause of chills and fever, and other malarial diseases, and is of special nuisance and injury to the lands and dwelling of the plaintiff, and is, in depo- nent's judgment, the sole ascertainable cause or source of the chills and fever, intermittent fever, and other malarial diseases which deponent has ever suffered, and which the plaintiff and his family have suffered since the making of the said dam or pond. That the deponent has been informed by Dr. H. Carru- thers, by Dr. James H. Pooley, and by Dr. J. Foster Jenkins, and by other physicians, and verily believes that the said dam or pond of water, and the marsh and swamp thereby formed and aggravated, is a source of malaria and fever and ague, and malarial diseases, and the cause of the fever and ague and malarial diseases which the deponent has suffered, and that the said nuisance is of special nuisance to the lands and dwelling of the plaintiff, and to the health of the plaintiff and his family. 15 Deponent further says, that the defendant, Moses T. Odell, stated to the deponent and to the plaintiff, in a con- versation had with them, that the Willsea Brook (the water of which brook forms the said dam or pond) brought down in the water thereof the offal and filth of a slaughter-house or rendering-house, and the animal filth of large numbers of hogs, and deposited the same over the surface of the ground flooded by the said pond, and that such animal filth so deposited, when exposed to the sun, was the cause of and produced an intolerable and terrible stench. Deponent further says that the stench and smell arising from the lands so flooded has, in the Spring of 1877, and also in the Spring of 1878, after the drawing off, lowering or evaporation of the waters covering the same, produced, and will necessarily again produce an intolerable and ter- rible stench, to the great nuisance of the lands and dwell- ing of the plaintiff, and to the injury of the health of the plaintiff and his family, and that the said stench is carried by the prevailing winds towards and in the direction of the plaintiffs said dwelling, so as to deprive the plaintiff and his family of the just and proper use of his premises and dwelling, and hinder his enjoyment thereof. Anne K. Holmes. Sworn to before me this 11th day of January, 1879. Ogden S. Bradley, Notary Public, in and for Westchester County. 16 NEW YORK SUPREME COURT. County of Westchester. Frederick J. Stone vs. Moses T. Odell, et al. City and County of New York, ss: George E. Waring, Jr., being duly sworn, deposes and says: That he resides in the city of Newport, in the State of Rhode Island. That he is a civil and sanitary engineer, and that he has given special attention for over twenty-five years to drainage, engineering, and for the last twelve years to the cause and prevention of malarial and zymotic disease. That he is acquainted with the lands and dwelling of the plaintiff and the dam or pond of water mentioned and described in the complaint herein, and has personally examined the same. That the said dam or pond of water is situated on lands immediately adjacent to those of the plaintiff, and about twelve hundred (1200) feet distant from the plain- tiff's said dwelling house. That the said dam or pond of water is formed by the waters of the Willsea Brook, which said brook is in the Summer season of inconsiderable size, and is, at or near its source, about half a mile above the said dam or pond, fouled and polluted by a slaughtering or rendering-house, by the entrails and viscera of animals, and by the pollu- tion and animal filth of large hog-pens or yards. That by reason of the making and maintenance and continuance of the said dam or pond of water, the channel and course of the said Willsea Brook is choked and 17 obstructed, and the adjacent meadow lands to the extent of six (6) acres or more, are periodically flooded with a very shallow depth of water, thereby causing the organic matter brought down in suspension in the running water to be deposited on the surface of the ground underlying the stilled waters of the pond, which organic matter is not removed by draining off the pond, but remains to be decomposed under the warmer temperature of Spring and Summer. That the obstructions to, and arresting of, the flow of the said stteam cause a deposit, in its natural channel, of silt and rubbish which interfere with its action as a drain, and increases and aggravates the natural marshy and swampy character of the ground. That the said dam or pond of water, and the said large swamp and marsh formed and aggravated thereby, is, as deponent verily believes, and therefore charges the truth to be, an active cause and source of miasma, malaria, fever and ague, intermittent fever, and possible zymotic disease, and is a nuisance and of detriment and pernicious to the health of the plaintiff and his family. That the plaintiff and various members of his family and his servants, have, since the making of said dam or pond, as deponent is informed by the plaintiff and others, and verily believes, suffered from chills and fever, inter- mittent fever, malarial and miasmatic diseases, and that in the judgment of deponent, the making, maintenance and continuance of the said dam and pond of water and the marsh and swamp thereby formed and aggravated as aforesaid, is the sole ascertainable source and cause thereof. Geo. E. Waring, Jr. Sworn to before me, this 8th '( day of January, 187V. j John Howard Latham, [seal.] Notary Public, 63, N. Y. Co. 18 NEW YORK SUPREME COURT. County of Westchester. Frederick J. Stone vs. Moses T. Odell, et al. County of Westchester and State of New York, ss. Ward Carpenter, being duly sworn deposes and says: That he resides in the Village of Tarrytown, County of Westchester and State of New York, and has resided therein for the last thirty-three years. That he is a civil engineer and has practiced as such for the last 33 years, and that he has for the last ten or twelve years given special attention to sanitary and drainage en- gineering. That he is acquainted with the lands and dwelling or the plaintiff, and the darn or pond of water mentioned and described in the complaint herein. That the said dam or pond of water and the marsh and swamp thereby formed and aggravated is an active cause and source of miasma, malaria, chills and fever and inter- mittent fever, and is of special injury and nuisance to the lands and dwelling of the plaintiff aforesaid, and is, in the judgment of the deponent, the sole ascertainable cause of the malaria, fever and ague and intermittent fever which the plaintiff and his family have suffered. That deponent has read the annexed affidavit of George E. Waring, Jr., Civil, Sanitary and Drainage Engineer, and knows the contents thereof, and that the same is true of his own personal knowledge. Ward Carpenter. Sworn to before me this 9th ( day of January, 1879. i J. S. Millard, Notary Public, in and for Westchester Co. 19 NEW YORK SUPREME COURT. County of Westchester. Frederick J. Stone vs. Moses T. Odell, et al. County of Westchester, State of New York, ss. Horace Carruthers, being duly sworn deposes and says: That he resides in the village of Tarrytown, County of Westchester, and Stiite of New York. That he is a physician and surgeon, and has practiced medicine and surgery under the laws of the State of New York for the last thirty (30) years, and in the said Village of Tarrytown for the last twenty-six (26) years. That he is acquainted with the lands and dwelling of the plaintiff, and the dam or pond of water mentioned and described in the complaint, and has personally examined the same. That he has read the annexed affidavit of George E. Waring, Jr., and knows the contents thereof, and the same is true of his own personal knowledge. That the said George E. Waring, Jr., is a sanitary and drainage engineer who is recognized by the medical pro- fession as the most successful and experienced drainage and sanitary engineer in the United States, and is known to deponent to be such and to be an authority in all mat- ters relating thereto. That deponent has been for the last four years the fam- ily physician of the plaintiff, and is conversant with the matters set forth in the complaint. That he has read the plaintiff's complaint herein, and knows the contents thereof, and the same is true of his own personal knowledge. 20 That the said dam or pond of water is situated on lands immediately adjacent to and south of the lands and dwel- ling of the plaintiff, and about twelve hundred feet distant from the plaintiff's said dwelling. That the prevailing winds in the Spring, Summer and Autumn are from the southwest, and pass over the said dam or pond of water towards and in the direction of the plaintiff's said lands and dwelling. That the said dam or pond of water is formed by the waters of the Willsea Brook, which is of inconsiderable size, and is at or near its source about half a mile above the said dam or pond, fouled and polluted by a slaughter- ing or rendering-house, by the entrails and viscera of animals, by the pollution of hens and ducks, and by the animal filth of large numbers of hogs. That by reason of the making, maintenance and contin- uance of the said dam or pond of water, the channel and course of the said Willsea Brook is choked and obstructed, and the adjacent low meadow lands to the extent of more than six (6) acres are periodically flooded with a very shallow depth of impure and polluted water, filled with de- composed and decomposing vegetable and animal organic matter; which said dam or pond of water and the marsh or swamp thereby formed and aggravated, and the said land so flooded, when the water has been partially or wholly withdrawn or has evaporated, have produced and will necessarily produce noxious and offensive and poisonous effluvia, miasma, malaria exhalations and smells, tainting, poisoning, corrupting and vitiating the atmosphere so as to cause chills and fever, intermittent fever and malarial dis- eases and zymotic diseases, to the special nuisance and injury and detriment of the lands and dwelling of the plaintiff, so as to render the said dwelling of the plaintiff unsafe and unfit for habitation and hazardous to the health and life of the occupants. That by reason of the said nuisance the plaintiff, and his wife, and his mother-in-law, and several of his em- 21 ployees, became dangerously and repeatedly sick with chills and fever, intermittent fever and malarial diseases, and the deponent has attended and treated them profes- sionally for the same. That by reason of the said nuisance the plaintiff and his family have been repeatedly compelled to leave the plain- tiff's said residence and go elsewhere, and the deponent has repeatedly advised the plaintiff that the said dam or pond of water was a nuisance and of danger to his health and that of his family, and that by reason thereof, it was imperatively necessary for the preservation of his life and the recovery of his health that he should leave his said residence and go elsewhere. That the said nuisance, to wit, the said dam or pond of water and the marsh and swamp thereby formed and aggravated is, in the judgment of the deponent the sole cause and source of the chills and fever, intermittent fever and malarial diseases which the plaintiff and his family have suffered since the making of the said dam or pond. Horace Carruthers. Sworn to before me this 9th [ day of January, 1879. j J. S. Millard, Notary Public, in and for Westchester Co. 22 NEW YORK SUPREME COURT. County of Westchester. Frederick J. Stone vs. Moses T. Odell, et al. County of Westchester and State of New York, ss: Christopher Prince-, being duly sworn, deposes and says: That he resides in the town of Greenburgh, in said County of Westchester. That he is a physician and surgeon, and has practised as such under the laws of this State for thirty-four years. That deponent was for two years the physician and surgeon of the Fire Department of the City of New York, and for two years for the Police Department of the City of New York. That deponent has given special attention to the cause, cure and prevention of malaria, intermittent fever and malarial diseases, and had large experience therein. That deponent is acquainted with the lands and dwell- ing of the plaintiff, and the dam oY pond of water men- tioned in the complaint, and has personally examined the same. That deponent has read the annexed affidavits of George E. Waring, Jr., and Doctor Horace Carruthers, and con curs therein ; and that the substantial and general details of the same are true to his own personal knowledge. Deponent further saith that said George E. Waring is, as deponent verily believes, a distinguished civil sanitary and drainage engineer, and an authority and expert in all matters relating to sanitary engineering, and especially the cause and prevention of malarial diseases; and that the 23 said Doctor Horace Carruthers is a physician of large and extended experience and practice C. PRINCE, M. D. Sworn to before me, this 15th day of January, 1879. T. W. Crisfield, Justice of the Peace. NEW YORK SUPREME COURT. County of Westchester. Frederick J. Stone vs. Moses T. Odell, et al. County of Westchester and State of New York, ss.: J. Bordon Fulton, being duly sworn, deposes and says. That he resides in the town of Greenburgh, in said county of Westchester. That he is a physician and surgeon, and has practised medicine and surgery under the laws of the State of New York for six years and more. ' That he has given special attention to the cause, pre- vention and cure of chills and fever and malarial diseases. That he is acquainted with the lands and dwelling of the plaintiff, and the dam or pond of water mentioned and described in the complaint herein, and has personally examined the same. That the said dam or pond of water is of special nui- sance to the said lands and dwelling of the plaintiff, and is an active and virulent source and cause of malaria and intermittent fever. 24 That the said darn or pond of water, and the marsh or swamp thereby formed and aggravated, and the periodic flooding of the adjacent lands is, in deponent's judgment, the sole ascertainable cause of the chills and fever and malarial fevers which the plaintiff and his family have suffered since the making of said dam. Deponent further says that he has read the annexed affidavits of George E. Waring, Jr., and Horace Car- ruthers, and knows the contents thereof, and that the substantial details of the same are true of his own per- sonal kh owledge. Deponent further says that said George E. Waring, Jr., is a recognized expert and authority in drainage and sanitary matters, and especially in the cause and preven- tion of malarial and zymotic diseases, and that said Horace Carruthers is an old and experienced physician, and one of the leading physicians in Westchester county. Dr. J. Bordon Fulton. Sworn to before me, this 15th day of January, 1879. J. W. Crisfield, Justice of the Peace. NEW YORK SUPREME COURT. County of Westchester. Frederick J. Stone vs. Moses T. Odell, et al. County of Westchester and State of New York, ss: James H. Pooly, being duly sworn, deposes and says: That he resides in the town of Greenburgh, County of 25 Westchester, and State of New York. That lie is a physi- cian and surgeon, and has practiced medicine and surgery under the laws of the State of New York, for the last thirty-five years, and in the said town of Greenburgh for ihe last thirty-two years. That deponent is acquainted with the lands and dwell- ing of the plaintiff, and with the dam or pond of water mentioned and described in ihe complaint. That the said dam or pond of water and the swamp and marsh, thereby formed and aggravated, is an active source of miasma, malaria, chills and fever, intermittent fever and zymotic disease, and is, in the judgment of the deponent the sole ascertainable cause of the chills and fever, intermittent fever and malarial diseases, which the plaintiff and his family have suffered, and is a nuisance and special injury to the lands and dwelling of the plain- tiff. That the said dam or pond of water is complained of by several of the neighboring inhabitants, and supposed to be the cause of some of the sickness from which they are suffering. I know the locality well, and have carefully read Col. Waring's survey and report of the land of Mr. Stone and vicinity, and, in the main, agree with him. But while he speaks of the malarial disease likely to arise therefrom in the warm weather, I am disposed to think much more seriously of the zymotic diseases, such as typhoid fever, diphtheria and erysipelas, as being caused thereby, if the springs or brook supply the water to those parts are con- taminated with animal matter, and germs arising from animal excretions and filth, which probably is the case, as many persons in the vicinity have been annoyed by the disagreeable odor arising from the land so saturated. And again, it seems that such is the fact, for there have been several cases of diphtheria thereabouts, eight of which came under by own personal observation hnd treat- ment, three of which terminated fatally. I have known 26 this section of country for over thirty years, and am pur- suaded that by observing proper directions for draining and abating the evident nuisances complained of, this part can be made not only delightfully pleasant, butper- fectlv healthy. J. H. POOLEY, M. D. Sworn to before me, this 10th day of January, 1879. Charles G. Storms, Justice of the Peace. NEW YORK SUPREME COURT, County of Westchester. Frederick J. Stone, vs. Moses T. Odell, et al. County of Westchester, State of New York, ss.: J. Foster Jenkins, being duly sworn deposes and says : That he resides in the city of Yonkers, in said county of Westchester. That he is a physician and a surgeon, and has prac- ticed medicine and surgery under the laws of the State of New York for twenty-nine years. 'khat deponent has given special attention to the cause, prevention, and cure of intermittent fever, commonly called chills and fever, and other*malarial diseases. That he is acquainted with the land and dwelling of the plaintiff, and the dam and pond of water mentioned in the complaint herein, and has personally examined the same. 27 That by reason of the making, maintaining, and con- tinuance of the said dam and pond of water, and the peri- odical flooding of the meadows thereto adjacent, the plaintiff, his family, and his employees became, in the judgment of the deponent, repeatedly and dangerously sick with chills and fever, and other manifestations of ma- larial disease, and that on one occasion the deponent, who attended and treated the plaintiff professionally as his medical adviser, urged the plaintiff to remove from the plaintiff's said residence and to reside elsewhere, as being- essential to the recovery of his health, which recovery took place on such removal. That the said dam and pond of water is an active cause of malaria, and malarial diseases, and is, in depo- nent's judgment, the chief ascertained cause of the chills and fever, intermittent fever, and malarial diseases which the plaintiff and his family have suffered since the making and erection thereof. Deponent further says that the said dam and pond of water, and the marsh and swamp thereby formed and aggravated, is of special nuisance and detriment to the said lands and dwelling of the plaintiff, and renders the occupancy of the said dwelling hazardous to thehedth of its occupants. J. FOSTER JENKINS, M. D., University of Penn., 1848. Sworn to before me this 16th day of Jan., 1879. Isaac P. Hubbard, Notary Public, New York Co. 28 NEW YORK SUPREME COURT. Westchester County. Frederick J. Stone vs. Moses T. Odell, et al. County of Westchester and State of New York, ss: Joseph Hasbrouck, being duly sworn, deposes and says : That he resides in the town of Greenburgh, county of Westchester and State of New York, and has resided there for the last three years. That he is a physician and surgeon, and has practiced as such under the laws of this State for ten years (10 years). That he is the Secretary of the Board of Health of the village of Greenburgh. That he is acquainted with the lands and dwelling of the plaintiff, and the dam or pond of water mentioned and described in the plaintiff's complaint, and has personally examined the same. That the said dam or pond of water and the marsh or swamp thereby formed and aggravated is, in the judgment of the deponent, an active and evident source and cause of miasma, malaria, chills and fever and zymotic diseases, and has caused and produced, and will necessarily cause and produce, chills and fever, intermittent fever and zymotic diseases, and further, that the same is of special nuisance and detriment to the lands and. dwelling of the plaintiff, and to the health of the plaintiff and his family. That the said Board of Health of the village of Green- burgh duly resolved and declared that the said dam or pond of water was a nuisance and of detriment to health, and have enjoined the defendants from making, maintain- 29 ing and continuing the same, and ordered them to abate and remove the same, and, as deponent verily believes, duly served written notices to that effect on the said defendants. That the said defendants, well knowing that the same is a nuisance and dangerous to health, and in violation of the orders of the said Board of Health, have wilfully and unlawfully maintained and continued to maintain, and now maintain, the said nuisance, to wit, the said dam or pond of water and refuse to abate the same. Joseph Hasbrouck. Sworn to before me, this tenth day of January, 1879. Ogden S. Bradley, Notary Public, In and for Westchester county. NEW YORK SUPREME COURT. Westchester County. Frederick J. Stone vs. Moses T. Odell, el al. County of Westchester State of New York, ss. D. 0. Bradley, being duly sworn, deposes and says: That he resides in the town of Greenburgh, county of Westchester and State of New York, and has resided there for the past ten years or more. That he is the President of the village of Greenburgh, and the President of the Board of Health of the said village. 30 That he is acquainted with the lands and dwelling of the plaintiff, and the dam or pond of water mentioned in the complaint herein, and has personally examined the same. That the said dam, or pond of water, and the marsh, or swamp, thereby formed and aggravated, is, in the judg- ment of the deponent, an active and virulent source and cause of miasma, malaria, chills and fever and zymotic diseases, and is of special injury and nuisance to the said lands and dwelling of the plaintiff That the said Board of Health of the village of Green- burgh, acting in a conjoint Board and in joint session with the Boards of Health of the village of Irvington and the village of Tarrytown, unanimously resolved and declared that all ponds, periodically flooded, were of nui- sance and detriment, and highly pernicious to the public health, and should be abated and removed. That the said Board of Health of the village of Green- burgh duly resolved and declared that, the said dam, or pond of water, was of nuisance and detriment to health, and directed and enjoined the defendants from making, maintaining and continuing the same, and ordered them to abate and remove the same, and (as deponent verily believes) duly served notices to that effect on the said defendants. That this deponent after the issuing of said orders by the said Board, did call on Henry Draper at his residence in Madison avenue, in the city of New York, who, as this deponent is advised and believes, is one of the guardians of the estates of the defendants Palmer, the infant owners of the land polluted by the said pond. That this depo- nent advised the said Draper that he called in hopes of avoiding litigation ; that if the Board of Health had erred in any of its orders, it would listen to arguments and cheerfully make corrections. That he was assured by said Draper that no attention would be paid to the orders of the said Board of Health ; that this property 31 would be managed by its owners to suit themselves, without any reference to the views of the neighbors and despite the village. That the defendants well knowing, as this deponent believes, that the same is a nuisance and dangerous to health, and in violation of the orders of the said Board of Health, have and continue to maintain the said nuisance, to wit, the said dam or pond of water, and refuse to abate the same. D. 0. Bradley. Sworn to before me this tenth day of January, 1879. Ogden S. Bradley, Notary Public, In and for W estchester County. NEW YORK SUPREME COURT. County of Westchester. Frederick J. Stone, vs. Moses T. Odell, et al. City and County of New York, ss: Richard R. Tyers, being duly sworn, deposes and says: That he resides in the town of Greenburgh, in the said County of Westchester, contiguous to the lands and dwelling of the plaintiff, and to the dam or pond mentioned and described in the complaint. That he is acquainted with the said lands and dwelling of the plaintiff, and the said dam or pond of water, and has personally examined the same. That the said dam or pond of water and the periodic flooding of the adjacent meadow lands and the marsh and swamp thereby formed and aggravated are an active and virulent source and cause of miasma, malaria, inter- 32 mittent fever and other malarial diseases, and are of special nuisance to the said lands and dwelling of the plaintiff. That the said dam or pond of water, and the adjacent lands so flooded have, when the water covering the same has been drawn off, lowered or evaporated, caused the depo- nent and his wife and four of his children to become ill, and sick^with severe intermittent fever and malarial diseases. That the deponent and his family have lived in his said dwelling for ten years and continued to enjoy good health while living therein, until the making of the said dam or pond of water, and the flooding of the meadow adjacent, and the drawing off, lowering or evaporation of the said water of the said pond. That the making, maintaining and continuance of the said dam or pond of water, and the periodic flooding of the lands adjacent thereto, and the marsh or swamp thereby formed and aggravated, are, as deponent is informed by Dr. Joseph Hasbrouck, and verily believes, the sole ascer- tainable cause of the malaria, intermittent fever and mala- rial diseases which the deponent and his family have, as aforesaid, suffered. Deponent further saith, that the making, maintenance and continuance of said dam or pond of water, and the periodic flooding of the adjacent lands, and the marsh or swamp thereby formed and aggravated, are in deponent's judgment the sole ascertainable cause of the intermittent fever and malarial diseases which the plaintiff and his family have suffered, since the making of the said dam or pond. RICHARD R. TYERS. Sworn'to before me, this 13th day of January, 1879. R A. Adams, Notary Public, City and County of New York.