Arguments for Appellants.

They have not even the selection of the pier, this being delegated to the harbor masters. (Laws of 1850, ch. 72.)

2. The fact that Mr. Cromwell, who owned the vessels and who furnished to his own vessels a pier, of which he was lessee, was also a partner with Messrs. Clark and Seaman, did not, as to them, alter the case.

The firm was a legal entity, quite distinct from Mr. Cromwell; it mattered not to them what pier the vessels used, or by whom owned. They were no more responsible, from the fact that Mr. Cromwell was the proprietor of the pier, than if any other person had been such proprietor.

3. If Mr. Martin, plaintiffs' sole witness, had confined his testimony to what he knew, as shown on his cross-examination, Mr. Seaman would not even have been connected with the vessels, not to speak of the pier; and Mr. Clark, only by a single statement, alleged by Mr. Martin and denied by Mr. Clark.

The fact, however, was, and so they came forward and frankly stated, that Messrs. Clark & Seaman were the ships' husbands, among other vessels, of Mr. Cromwell's steamers.

The motion for a nonsuit was made on these and other specific grounds, and should have been granted.

III. Messrs. Clark & Seaman had no legal right, without the permission of Mr. Cromwell, to interfere with or remove the fence. He was the sole lessee of the pier, and owner, with Mr. Hammett, of the vessels which used it.

1. The judge should have so charged.

2. And should also have charged, that if they had no legal right to remove the fence, they were not liable.

3. And, upon this ground, the defendants should have judgment.

4. Again: It was error to charge, that as ships' husbands, they were prima facie liable;

Even if Mr. Clark, as he denies, told Mr. Martin: "We keep the fence there to keep vessels away."

(a.) If he said so, he used the "we" as meaning Mr. Cromwell.

(b.) As applied to himself and Mr. Seaman, the remark is proved untrue by all the testimony.

Arguments for Appellants.

(c.) Mr. Seaman could not be bound by any such statement. There was no evidence that the partnership had anything to do with the pier, and that it did cannot be proved by the admission of one partner against the other. (Collyer on Partnership, §§ 442, 443, 779.)

Again: Mr. Martin, who swears to this statement, says it was made on October 6, 1863. It is not the erection, nor the maintaining, but the continuing after notice to remove, which creates the liability. This notice (the formal notice, from the service of which the jury gave the penalty) was not served till December 3, 1863. Mr. Clark's alleged statement, if construed literally, did not, therefore, apply to the material time (that subsequent to December 3, 1863), and is not inconsistent with the established fact, that these defendants had no legal power to remove the fence after the notice was served. IV. The exceptions to evidence were well taken. 1. It was proper to show the general arrangement of piers to be similar to that of pier No. 9.

(a.) This was especially so in the view taken by the plaintiffs, that they were entitled to recover on the ground that the fence constituted a nuisance.

The situation, location and comparative use and character of that which is claimed to create a nuisance, control the question of whether it does or not. (Hart v. Mayor, &c., of Albany, 9 Wend., 571; Hecker v. N. Y. Balance Dock Co., 24 Barb., 215.

That such was by permission of the legislature, might be an answer to the evidence, but the statement that such was the case was no objection to the testimony.

An

2. What prompts a witness is quite immaterial. improper question here elicits a still more improper answer. The witness reasserts a mere conclusion, which he himself had disproved.

V. The foregoing points are on the basis of the correctness of the requests of the plaintiffs, charged by the judge, to which the defendants excepted.

The defendants do, however, submit: Mr. Cromwell was the lessee, and as such sole owner pro hac vice of the pier.

Arguments for Respondents.

No qualification of this ownership was proved. His employment of the pier for the purposes of trade and commerce, completely occupied it. The cases showing the right of legislative interference, cited below by the plaintiffs, apply only to streets, legally appropriated to the public use on compensation to owners, or to navigable waters, never the subject of private ownership.

No case affirms the legislative control of the surface of a pier, or the constitutional right to impair the owner's interest in it, without compensation to him.

Mr. Cromwell, therefore, had the right to erect and maintain the fence. (Wetmore v. The Atlantic White Lead Co., 37 Barb., 70.)

The statute in question is highly penal. To sustain the judgment the evidence must clearly show the character of the pier to be such as to bring it within the control of the legislature without regard to private rights. (Sprague v. Birdsall, 2 Cow., 419; Millard v. Lake Ontario, Auburn & N. Y. R. R. Co., 9 How. Pr., 238.)

There is no evidence that the pier in question is the extension of a street or which can give any public character to it; on the contrary, the evidence is, that it is a private pier.

Wm. A. Butler and J. H. Reynolds, for the respondents.

I. The fence in question, being built upon a pier in the navigable waters of the harbor of New York, and across its entire width, so as to interfere with its free use by the public, was a violation of the provisions of section eight of the act of April 16, 1857, establishing regulations for the port of New York (as amended), and being unauthorized by law, was a public nuisance, irrespective of the degree of inconvenience which it occasioned, or of any question of convenience or inconvenience. (Act April 16, 1857, Laws 1857, vol. 2, pp. 487, 488; Act April 15, 1858, Laws 1858, p. 363; Fowler v. Saunders, Cro. Jac., 446; The King v. Russell, 6 B. & C., 566; The King v. Carlisle, 6 Carr, & Payne, 636; The King v. Ward, 4 Ad. & E., 384; Hart v. The Mayor of Albany, 9 Wend., 571; The People v. Cunningham, 1

Arguments for Respondents.

Den., 524; Davis v. The Mayor of New York, 4 Kern., 506, and see p. 525, and cases collected there; The People v. Vanderbilt, 38 Barb., 282; S, C., 26 N. Y., 287.)

1st. The court correctly charged the jury in the five several propositions in reference to obstructions on the piers of the port of New York, as follows:

First. 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.

Second. That without special license or authority, conferred, directly or indirectly, by act of the legislature, no private person has any 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 purpose of such business.

Third. That if the jury believed there was a fence 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 or the public, then such fence was an obstruction within the meaning of section eight of the act to establish regulations for the port of New York.

Fourth. That the fact that there was an opening by a gate in this fence, through which some vessels could discharge cargo, is no defense, inasmuch as the public right, protected by the law, is to the free use, and not to any limited use.

Fifth. That even though the fence in question might have been advantageous to the shippers of goods, by the lines of steamers of which defendants were agents, and thus beneficial to a part of the public, this is 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 have given no special privilege to the lessee of the pier. (See cases cited above, and also as to the public right in the piers in the port of New York, and the power of the legislature to regulate their use;

Arguments for Respondents.

Act April 17, 1784, Jones and Varick, p. 125, § 8; Act March 31, 1801, Davies' Laws relating to the city of New York, p. 400, § 9; Act April 19, 1813, id., p. 559, § 235; Act April 19, 1830, id., p. 705, § 1; Act April 16, 1857, Laws 1857, vol. 2, p. 487, § 8; Act April 15, 1858, Laws 1858, p. 363, § 5; Vanderbilt v. Adams, 7 Cow., 349.)

2. There was no error in the remark of the learned judge, to the effect that, if so requested, he would have felt it his duty to instruct the jury that the fence was an obstruction in point of law. He left the question of fact to the jury, and to the expression of his opinion on the question of law, no exception will lie, especially as that opinion was fully sustained by the authorities. (See cases, supra, under first point.)

3. The jury having passed upon the question of fact, put in issue by the answer, as to the fence being actually an interference with the free use of the pier, its illegality is established by the verdict, and cannot be reviewed on this appeal.

II. The judge, at the trial, properly left to the jury the question of fact, by whom the obstruction was placed or kept upon the pier; and there was no error in his refusal to dismiss the complaint at the close of the evidence, or in his instructions to the jury in reference to the parties liable for the penalty.

1st. The evidence clearly showed that the fence was erected in connection with, and for the benefit of, the business of the line of steamers of which the firm of H. B. Cromwell & Co. were agents and managers, and in respect to which they held themselves out to the public as the sole proprietors, in their firm name; that they had and exercised absolute control over the pier, in respect to the entire business of the ships composing the line, and that when notified by the plaintiffs to remove the obstruction, they gave no intimation that the wrong party was notified, but frankly avowed themselves as maintaining it, stated the object for which it had been erected, and their unwillingness to have it removed.

It was a question of fact for the jury to say whether the firm, or only the senior member of it, who was confined to