majority">By the Court, Balcom, J.

The defendants' counsel claims that the allegations of the cause of action in the complaint were unproved in their entire scope and meaning, and that there was a failure of proof, which entitled the defendants to a nonsuit, by virtue of section 171 of the code. This is not so. The complaint not only states facts sufficient to constitute the cause of action for which the plaintiff recovered in this case, but also enough to constitute the cause of action for which he recovered in the first suit he brought against the defendants.

The plaintiff recovered damages in the first suit for erecting and continuing the obstructions in the channel of the creek, by the defendants, to the time he commenced that suit; and he has only recovered damages in this action for continuing such obstructions from the time the first suit was commenced to the time of the commencement of this one.

It would certainly have been more lawyer-like if the plaintiff’s attorney had alleged, in the complaint in this action, the bringing of the first suit and the recovery therein, and the wrongful continuance of the obstructions in the channel of the creek thereafter, by the defendants, and only claimed *294damages for such continuance. (See Yates’ Pl. 521; 2 Chit. Pl. 333.) But that was not absolutely necessary to the maintenance of this action ; for the reason that the complaint, as framed, embraces the cause of action for continuing the obstructions after the commencement of the first suit. (See Colvin v. Burnet, 2 Hill, 620.)

'It is well settled that every continuance of a nuisance is a fresh one. (3 Black. Com. 220. Brady v. Weeks, 3 Barb. S. C. R. 157. Vedder v. Vedder, 1 Denio, 257. Staple v. Spring, 10 Mass. Rep. 74. Fish v. Dodge, 4 Denio, 317. Brown v. The Cayuga and Susq. R. R. Co., 2 Kernan, 492.) And I think the continuance of the obstructions in the channel of the creek, by the defendants, after the commencement of the first suit, should be deemed fresh ones ; and that such continuance of those obstructions entitled the plaintiff to bring this action. In this view of the case the first suit was not a 'bar to this action, as it was limited at the trial.

The obstructions, of which the plaintiff complained in each action, were upon the defendants' land, where they could have removed them ¡ hence the plaintiff" was not entitled to' recover, in the first suit, any damages occasioned by the obstructions after he commenced it. (1 Denio, 257. Blunt v. McCormick, 3 id. 283.)

I will not say, if the plaintiff had claimed exemplary damages in this action, as it seems he might, (see 3 Black. Com. 220,) but that it would have been necessary for him to set out in his complaint the first recovery, and allege a wrongful continuance of the obstructions, to have enabled him to recover such damages. But it is unnecessary to pass upon that question ; because he has recovered only actual damages.

The case of Wilbur v. Brown, (3 Denio, 356,) is unlike this. If the recovery in that case had been permitted to stand on the declaration as it was framed, it would have conferred greater rights upon the plaintiff than he had. In other words, it would have estopped the defendant from setting up rights in a future litigation, which he confessedly possessed.

*295[Chenango General Term,May 10, 1859.

Mason, Balcom, and Campbell, Justices.]

In this case the form of the complaint has not prejudiced the defendants in the least. They have had all the benefit of the former suit to which they were entitled; and the form of the complaint in this action cannot possibly ever harm them in any future litigation, where the recovery herein shall be brought in question.

But if it be conceded that the complaint, as drawn, was defective, I am of the opinion it was the duty of the judge at the trial to direct that it be amended. Its amendment, if necessary to the maintenance of the action, was clearly “ in furtherance of justice)” and therefore proper. (See Code, §§ 173, 176; Dauchy v. Tyler, 15 How. 399 ; Wood v. Wood, 26 Barb. 359; 4 Kernan, 251; Id. 506; 2 Smith, 250; 3 id. 224.)

The judgment in this action should be affirmed, with costs.

Decision accordingly.

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