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Opinion of the Court, per PORTER, J.

Matthews & Swan, for the appellant.

Gilbert Dean, for the respondents.

PORTER, J. It is manifest from the evidence that the design of the plaintiff was to practice a fraud upon the defendants. When the aid of the courts is invoked to give effect to a dishonest purpose, the onus is upon the party who seeks interference in his behalf, to show a clear title to the relief he demands. The case disclosed by the record is plain and bald. The plaintiff acquired the control of the premises in question, under a lease for a term of ten years, at a rent of $400 a year. The front rooms were occupied by him, and those in the rear by the defendants. Both were engaged in the same business, though he had another ostensible employment. He induced the defendants, who had been his tenants during the previous year, to continue their occupation of the rooms in the rear of his own, by agreeing to give them a written lease for ten years, free from all conditions except the reservation of an annual rent of $275. He exacted and received the rent for the first quarter, which became due on the 1st of August, 1854. Before the rent for the second quarter accrued, he refused to execute a lease in conformity with the agreement, but offered to sign an instrument prohibiting the defendants from continuing the business, for which they had agreed to lease the premises.

There was no concealment by the plaintiff of his fraudulent purpose. He not only refused to fulfill his agreement, but boasted that he had the defendants in his power, and that he could turn them into the street if they did not accede to his terms. He threatened to expel them from the rooms they occupied, and resumed control of the property by posting advertisements on the door, and negotiating with third parties for a lease of the premises from and after the 1st of November. He denied that the defendants were his tenants, and repudiated any agreement, either express or implied, that they should attorn to him as their landlord.

It is true, that but for his disclaimer of the agreement, and his interference with the possession of the defendants,

Opinion of the Court, per PORTER, J.

he could have held them to respond for the use and occupation of the premises, under the rule, which, at the election of the landlord, gives effect to a parol lease, void by the statute of frauds, by implying a tenancy from year to year. But in this case, the plaintiff chose to repudiate the relation of landlord and tenant, and he is concluded by that election. (Morris v. Rexford, 18 N. Y., 552.)

The express contract cannot be enforced; for the appellant chose to ignore it, and to shield himself under the statute of frauds. He cannot recover upon the implied contract; for he deliberately elected to disclaim it, to repudiate his own obligations, and to deny the rights of the defendants. It is true that he did not resort to physical force to expel them from their possession; but he threatened such expulsion, assumed to rescind the contract which the law implied in his favor, and resumed the dominion and control of the property, before the rent for the second quarter accrued. Under such circumstances, the defendants were at liberty to abandon their occupation, without awaiting actual expulsion, and to treat the conduct of the plaintiff as equivalent to a rescission of the contract, and an eviction from the demised premises. (Burns v. Phelps, 1 Stark., 94; Ogilvie v. Hull, 5 Hill, 55; Hall v. Burgess, 5 Barn. & Cress., 332; Lawrence v. French, 25 Wend., 445; Dyett v. Pendleton, 8 Cow., 727; Edgerton v. Page, 20 N. Y., 281, 283, 284.)

The judge was right, therefore, in his instructions to the jury. He was also right in refusing to charge in accordance with the plaintiff's requests. Some of these.were purely speculative. Some of them assumed that the defendants were liable without regard to the conclusions of the jury from the evidence. Some of them related to the effect of isolated portions of the proof, dissevered from all connection with other facts, which the testimony tended to establish, and which gave them peculiar significance and force. Others were, in effect, requests to withdraw questions of fact from the consideration of the jury, and to preclude them, in determining the issue, from weighing the whole body of the evidence. It is manifest that the plaintiff suffered no injustice from the charge,

TIFFANY. – Vol. VI.

32

Opinion of the Court, per PORTER, J.

and none from the refusal of the court to permit him to frame his own instructions to the jury. It would be difficult to conceive an attempt more hopeless, than that of a deliberate wrongdoer to obtain benefit, through the verdict of a jury, from an act of sheer injustice.

The appellant complains that he was not permitted on the trial, to disparage the defendants' witnesses by inquiries irrelevant to the issue. The propriety of allowing such inquiries rests in the discretion of the presiding judge. The record discloses nothing to justify an inference that this discretion was abused, and the question is therefore one of which we can take no cognizance on appeal. (The Great Western Turnpike Co. v. Loomis, 32 N. Y. [5 Tiff.], 127.)

The judgment should be affirmed, with costs.

All the judges concurred in the foregoing opinion, except Brown, J., who read a dissenting opinion, in which Judge DAVIES concurred.

Judgment affirmed.

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Statement of case.

THE BOARD OF COMMISSIONERS OF Pilots v. John H. CLARK

and SAMUEL H. SEAMAN, Survivors of HENRY B. CROMWELL, deceased.

33 251 133 289 133 635

A lease of a public wharf from the mayor, &c., of New York, does not confer

upon the lessee the exclusive right to its possession, use or control. By the

force of the lease, he only becomes entitled to the wharfage accruing thereat. Under such lease, such wharf continues a public wharf, and all vessels resorting

to it are subject to the general rules of law regulating the use of wharves,

slips and piers, and the mooring and stationing of vessels. And the vessels of the lessee are subject to the same rules, &c., as other vessels

using said wharf. Such lessee cannot lawfully place structures upon such pier for his own con.

venience, which shall materially incumber it, or interfere with its free use for

purposes connected with navigation, by the general public. A firm acting as the common agent of several lines of vessels, causing such

structure to be erected and maintained for their accommodation as such agents, though they charge the expense thereof to such vessels, or lines of vessels, are the actors in making such obstructions, and are liable therefor.

APPEAL from a judgment of the Supreme Court.

The action was brought to recover certain penalties imposed by a statute passed in 1858, in the following words: “Whenever any pier or bulkhead in the port of New York shall be incumbered, or its free use interfered with, by merchandise, lumber, or any other obstructions, whether of loose material, or built upon, or affixed to the pier or bulkhead, it shall be the duty of the commissioners (of pilots] to notify the person or persons placing or keeping such merchandise or obstruction on such pier or bulkhead, to remove such merchandise or obstruction within twenty-four hours after such notice; and in case of failure to comply with such notice and to remove such merchandise or obstruction, the person or persons so notified shall be liable to pay to the commissioners the sum of twenty-five dollars for each and every day during which such merchandise or obstruction shall reinain on such pier or bulkhead," &c.

The defendants, at the time when the penalties were alleged to have been incurred, and at the time of commencing the action, on the 14th January, 1864, composed the firm of H.

Statement of case.

B. Cromwell & Co., but Mr. Cromwell died, after issue joined, on the 3d day of April, in that year, and the action was continued against the two other defendants as survivors.

The alleged obstruction was upon pier No. 9, North river, and it consisted in the erection and maintaining a structure used as a shed upon the pier, the westerly or river end of which building was about three feet from the outer extremity of the pier and extended quite across the pier, a distance of about forty feet. This end was called, in the complaint and by the plaintiffs' witness, a fence. It was ten feet high, or more, and had a sliding gate in it about nine or ten feet wide, and a smaller gate at the side. After its erection, and on the 3d December, 1863, the plaintiffs caused to be served upon the defendants a copy of a resolution of their board, and a notice, to the effect that the defendants were required to remove the obstruction within twenty-four hours from the time of the service. It was not removed until after the commencement of the action, when the end complained of was taken down by the defendants. The amount of penalties incurred, if the defendants were liable, was $925.

The questions litigated were: 1. Whether the structure was an obstruction in the sense of the act, and, 2. Whether the two surviving defendants, against whom the action was depending at the time of the trial, were responsible for its maintenance.

On the trial before Mr. Justice Davis and a jury, it appeared that the shed was erected by the lessee of the pier for the purpose of protecting property received from vessels, or brought there to be shipped, from rain and from thieves, until it should be removed ; that the class of vessels which came to the end of the pier to load or to be discharged were lighters and canal boats, and vessels having a single hatch. As to the actual effect of the fence on the use of the pier, a witness for the plaintiff, wlio was their agent, testified that the erection prevented the use of the pier by persons who wanted to get down with carts, and also prevented its use by vessels wishing to unload at the end of the pier. He also swore that when he called upon Mr. Clark, one of the defend.

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