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P leased a portion of the former Brooklyn Navy Yard for a period of five years commencing September 1, 1970. P conducted a storage and new car preparation business, the latter entailing over 50 steps, ranging from services such as checking brakes to vehicle cleaning, catering to automobile dealers in the metropolitan area of New York City. Adjacent to the navy yard was D's plant, engaged in the production of steam and electricity since about 1926. D's burners were fired with oil having a sulphur content of 1% or less. Prior to 1968, coal had been the fuel employed, and the main boiler was equipped with an electrostatic precipitator to remove or control the discharged fly ash. Upon conversion to oil, the precipitator had been deactivated. P claimed that noxious emissions from D's stacks caused damage to the exterior of autos stored for its customers, such as to require many to be repainted. Dealers terminated their business with P and P ceased doing business on May 28, 1971. P sought $1,300,000 for loss of investment and loss of profit for nuisance, a wrongful and unlawful trespass, and violations of 'New York City, New York State, and federal laws, regulations, and guidelines with respect to air pollution. P also sought punitive damages. The nuisance and trespass causes of action were merged, and only those two went to the jury. The trial court charged nuisance based on negligence and nuisance grounded on an intentional invasion of P's rights. The court also stated that contributory negligence may be a defense where the basis of the nuisance is merely negligent conduct, but it would not be where the wrongdoing is founded on the intentional, deliberate misconduct of D. P claimed that 'nuisance is entirely separate and apart from negligence' and that 'D's intent or negligence is not * * * an essential element of the cause of action of nuisance.' P excepted to the portions of the charge relating to said subjects. The jury found in D's favor, and judgment was entered dismissing the complaint. The Appellate Division affirmed, holding that the instructions to the jury on the issue of negligence were correct. The dissent held that a cause of action in nuisance does not involve the element of negligence as one of its essential factors, that the charge which mingled elements of nuisance and negligence could have been confusing to the jury and that the possibility of confusion was compounded by an instruction that P, to succeed, was required to prove that the injury to its property was intentionally inflicted. P appealed. P claims that the trial court erred in charging that P was required to prove an intent of the defendant to cause damages, and that P had a burden of proof as to D's negligence and P's freedom from contributory negligence.

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