Opinion
Argued June 9, 1913
Decided June 20, 1913
James C. Cropsey, District Attorney ( Hersey Egginton and Harry G. Anderson of counsel), for appellant. Louis Marshall for respondent.
We think the indictment in this case was sufficient. We cannot see the force of the claim that the indictment fails to show that the grand jury had jurisdiction to inquire into the offense. It is charged in the indictment that the offense was committed in the borough, city and county aforesaid. It is true no borough or city is stated in the indictment, but the county aforesaid is stated to be the county of Kings, and by law the county of Kings constitutes the borough of Brooklyn in the city of New York. The second objection to the indictment, for which it has been held defective by the courts below, is that it fails to state that the acts charged injured and endangered the comfort, repose, health and safety of "a considerable number of persons." The indictment is in the common-law form appropriate to the offense, and unless the offense has been changed in some element or factor requisite to constitute its commission, that form should be held sufficient. ( People v. Conroy, 97 N.Y. 62; People v. Willett, 102 N.Y. 251; People v. Giblin, 115 N.Y. 196.) We are entirely clear that it was not the intention by the Penal Law (Section 1530, subd. 4) to add any new element to what was previously necessary to constitute a public nuisance. The expression "any considerable number of persons" is used solely for the purpose of differentiating a public nuisance, which is subject to indictment, from a private nuisance. But a considerable number of persons does not necessarily mean a very great or any particular number of persons. The travelers on a highway of a sparsely settled country town and those moving along the densely thronged city street are equally a considerable number of persons, and an illegal obstruction of a highway in the town and that of a city street are equally public nuisances.
The charge in the indictment that the acts of the defendant injured and endangered the comfort, repose, health and safety of the persons using the streets and living in the dwellings, buildings and premises in the neighborhood is a sufficient allegation that they injured the comfort, repose, health and safety of a considerable number of persons. If the nuisance affects only private property the question whether the number of persons affected is considerable will be one of fact to be determined on the trial. We find nothing in People v. Transit Development Company ( 131 App. Div. 174) inconsistent with these views. That case deals with a different question from the one before us.
The judgment below should be reversed, the demurrer overruled and the defendant be directed to plead to the indictment.
GRAY, WERNER, HISCOCK, COLLIN, CUDDEBACK and MILLER, JJ., concur.
Judgment reversed, etc.