Statement of case.

ants, respecting the fence, in October, 1863, and asked him to remove it, he said they (his firm) kept it there to keep vessels away; that they did not wish anybody to come there, and wanted to occupy the pier exclusively for their own use. The defendant Clark, as a witness for the defendants, denied having made the statement attributed to him. He testified that he had seen lighters and canal boats discharge at the end of the pier while the alleged obstruction was there; that they would swing the goods through the gate inside the shed without difficulty, and that the fence did not interfere at all in discharging lighters and canal boats.

Upon the question whether the surviving defendants were so connected with the erection as to be responsible, the facts were, that the three original defendants were partners in the commission business, as agents for steamers running out of New York, acting as ships' husbands and having the sole direction in New York of the business of the steamers for which they were concerned. The defendant Cromwell was the owner of a line of steamers running between New York and Portland, Maine, and of another line running to New Orleans, except that in one of them another person was the owner of one-ninth part; that these vessels were within the agency of Cromwell & Co., who advertised them; and they came to this pier. Mr. Cromwell was also the lessee in his own name of the pier, and he caused the shed to be erected, the other defendants not being interested, as Mr. Clark swore, in that work. When it was taken down it was done in consequence of the advice of defendants' counsel in the suit, by' persons in the employment of the firm. A person named Pierson attended to the business of the steamers on the dock, where there was an office, and where he was constantly employed. His wages were paid by the firm and charged to the steamers; the erection of the shed was also paid for by the firm and charged to the steamers, the expense being divided among them; and so of the expense of taking down the fence. The rent of the wharf under the lease to Cromwell was paid by the steamers, it being divided among them, through the firm, who kept all the accounts respecting the steamers and the

Statement of case.

wharf. When other parties paid wharfage it went to the benefit of Cromwell's lines, relieving them from the rent to that extent. It appeared that Mr. Cromwell was confined to his house by illness during the time for which the penalties were claimed, and that he was represented in the business relating to the steamers by the other defendants. The pier in question was shorter than those on each side of it. The defendants' counsel offered to show that the space between the two adjoining piers, at the end of pier No. 9, was so narrow that vessels larger than a lighter could not lie at and discharge on the end; but the evidence was objected to and excluded. They also offered to show that other piers in the city had similar fences across the ends, but this testimony was also excluded. The plaintiffs' counsel inquired of a witness, who was the agent of the plaintiffs, how he came to go to the office of Cromwell & Co., on the occasion when he said he did go there, and spoke with Mr. Clark; to which the defendants interposed an objection, which was overruled, and the witness said it was because they occupied that pier. The defendants' counsel excepted to these several rulings.

The defendants' counsel moved to dismiss the complaint, claiming that, upon the whole evidence, Cromwell alone was responsible, and he having died before the trial, the plaintiffs could not recover against any one. They also claimed that under an act of April 15, 1858 (ch. 261), the steamers of Mr. Cromwell's line were entitled to the entire use and occupancy of this pier. The motion was denied, and the defendants' counsel excepted. The defendants' counsel then proposed a great number of propositions which they requested to have charged, which were resolvable into these that the present defendants had no such control of the pier, that they could remove the fence or be held chargeable for continuing it contrary to the notice given by the plaintiffs; and that upon the evidence, the fence was not an obstruction of the pier within the meaning of the act.

As to the first point, the judge charged that if the obstruction was placed on the pier or maintained there by the firm of Cromwell & Co., the action could be maintained against

Statement of case.

the defendants as survivors of Mr. Cromwell; but if that person individually possessed and controlled the pier, and the firm merely used it for the accommodation of the vessels for which they were agents, and which vessels were mainly owned by Cromwell, and that the firm as agents and ships' husbands had nothing to do with the pier itself, so far as its control was concerned, or the advantage to be derived from its use as affecting the vessels, then the wrong for which the penalty. was provided would be that of Cromwell individually, and the defendants, as surviving partners of the firm, would not be liable in this action. The judge then recapitulated the testimony bearing upon the point, in the course of which, after stating the alleged admission of Mr. Clark, and the general character of the acts which the firm were accustomed to perform in connection with the pier and the vessels, he said: "upon this evidence which certainly makes out a prima facie case, it is insisted that the fact should be found by you, that the firm of Cromwell & Co. were maintaining the fence." He then stated the testimony of the two defendants, which they had given as witnesses, denying that they had any relation to or control over the pier or with his management, and did not receive any of the profits, and he concluded his remarks upon this point as follows: "If you are satisfied, looking at this evidence and grouping it together, that the firm of Cromwell & Co. maintained this fence," and if they found it to be an obstruction, "these defendants are liable as survivors of that firm; but if you find, on the other hand, as insisted upon by the defendants, that Mr. Cromwell, as the owner of these ships, furnished it and maintained it without the ship's agents having anything to do with the furnishing, or having the right to control it, then it is your duty to find for the defendants."

As to the character of the alleged obstruction and the law relating to it, the charge was as follows: "That the free and unobstructed use of the piers in the city of New York, for the general purposes of trade and commerce, is matter of public right, which can only be abridged by act of the legislature of the State; that without special license or authority

Statement of case.

conferred directly or indirectly by act of the legislature, no private person has a right to interfere with the free use of a pier, or to obstruct free passage over it by all persons, or access to it by all vessels lawfully engaged in trade or commerce, and having occasion to use the pier for the purposes of such business; that if the jury believed there was a fence built across the end of the pier in question, extending over its entire width of forty feet, so as to abridge the free access and passage to and from the pier, and its free use by vessels and the public, then such fence was an obstruction within the meaning of the act upon which the suit was brought; that the fact that there was an opening by a gate in this fence through which some vessels could discharge cargo, was no defense, inasmuch as the public right protected by the law, was to a free use, and not any limited use; that even though the fence in question might have been advantageous to the shippers of goods by the lines of steamers of which the defendants were agents, and thus beneficial to a part of the public, that was no justification for placing or keeping it, if it did in fact deprive the rest of the public of such free use of the pier as they were lawfully entitled to enjoy, and as to which the legislature had given no special privileges to the lessee of the pier.

In commenting on the evidence relating to this part of the case, the judge expressed an opinion that the jury would feel very little embarrassment respecting it; "indeed," he added, "if the learned counsel had asked the questions, I should have felt it my duty to say to you that this was an obstruction in point of law. However, I do not go that length in submitting to you these various propositions." He also held that the statute of April 15, 1858 (ch. 261), had no application to the case. The defendants' counsel excepted to the several points of the cause unfavorable to them, and to the observation of the judge, that certain evidence established a prima facie case, and to his remark that he should have held the fence an obstruction in point of law, if he had been asked to do so.

The verdict was for the plaintiffs; and the judgment having been affirmed at a General Term, the defendants brought this appeal.

Arguments for Appellants.

John E. Parsons, for the defendants and appellants.

I. The question whether the fence was an incumbrance or obstruction to the pier was of fact for the jury.

The plaintiffs, by one witness only, and he a man who would not give a direct answer to the simplest question, on cross-examination, attempted to show that the fence obstructed the use of the pier by vessels lying at its outer end.

The defendants produced two witnesses who swore that the fence did not in any way interfere with such use.

It was error, therefore, for the judge to charge that, if asked, "I should have felt it my duty to say to you that this was an obstruction, in point of law;" and that "the only really important issue for you is, by whom was this structure erected and maintained."

Nor is this objection cured by the nominal submission, notwithstanding, of the question to the jury. Their judgment was necessarily controlled by this expression of the judge." For the court to say: as matter of law, this is an obstruction; but I leave it for you to say whether it is or no," is to prevent the jury from exercising their own judgment. (The N. Y. Firemen's Ins. Co. v. Walden, 12 Johns., 513; Read v. Hurd, 7 Wend., 408, 411.)

1. Again: It was error, the plaintiffs' witness having sworn that the fence prevented the use of the pier by vessels lying at its outer end, to refuse to permit the defendants, on the cross-examination of this witness, and by their own witnesses in contradiction, to show that no vessel, in consequence of the narrowness of the slip, could lie across the end of the pier, with the loading or unloading of which the fence could interfere.

II. If, however, there was any liability it was of Mr. Cromwell personally. The present defendants and their firm neither erected nor maintained the fence; and as to them there should have been a nonsuit. The evidence does not sustain a verdict against them; and the question submitted to the jury as to them was of law rather than of fact.

1. The agent of a vessel is not, as such, responsible for the erections upon a pier which such vessel may use.

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