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Arguments for Respondents.

his house by the illness of which he afterwards died, during the entire period after the notice was given, were the parties who actually, and especially after the notice, placed or kept the obstruction on the pier.

And it was a question for the jury, whether they believed Martin's positive testimony as to Clark's declarations, or Clark's inferential and argumentative denial.

2d. The question of the liability of Clark and Seaman, as survivors, was left to the jury, under instructions by the court, which gave the defendants the benefit of every ruling to which they were entitled, and the several exceptions to the charge, in this respect, are untenable.

(a.) There was no error in the instruction that the defendants were sued as members of the firm of H. B. Cromwell & Co. They were so sued, and the action was continued against the present defendants as survivors. They were, of course, liable as such survivors, provided the jury found that the acts complained of were done by the firm, and they did so find.

(6.) Nor was there error in the instruction that it was only necessary for plaintiffs to show that the firm of H. B. Cromwell & Co. committed the alleged offense. The firm, and not its individual members, were the parties complained of.

(c.) Nor was there error in the further remark of the court that the excision of Mr. Cromwell and his estate from the case had no bearing on the question.

III. The act of April 5, 1858, authorizing the exclusive use of piers by certain specified lines of steamers and of steamboats plying between certain specified ports, has no application in this case; the detendants' steamers do not come within the law, not being vessels enumerated in the act. (See Act April 5, 1858, Laws 1858, 413.)

IV. The offers to show that other piers in the city have similar fences and obstructions upon them were properly rejected, as also the offer to show that the situation of pier No. 9 was such that only lighters could conveniently use the end of it. The evidence in each instance was wholly irrelevant and inadmissible. The state of the facts proposed to be

Opinion of the Court, per DENIO, Ch. J.

proved did not limit the operation of the law, or prevent its provisions from applying to the obstruction in question.

V. The records of the board of commissioners of pilots were properly given in evidence to show their official action on the subject. (Greenl. on Ev., $ 483; Bissell v. Hamlin, 6 Duer, 512.)

VI. It is matter of notoriety that the piers and wharves of the city of New York, are, to a great extent, appropriated, without right, by private parties, for the convenience of their own business, to the great detriment of the public interest. In the present action it was proved, to the satisfaction of the jury, that the defendants, the firm of H. B. Cromwell & Co., the agents of a leading line of steamers, had deliberately persisted, in spite of repeated notices and warning from the proper authorities, in keeping the obstruction complained of, upon the pier in question, solely for their private advantage, and so as to deprive all vessels, except those of their own line, and occasionally small lighters, of the use of the end of the pier. This persistent violation of law was properly rebuked by the verdict of the jury — and juries rarely give verdicts in suits for penalties except in very clear cases — and it being fully sustained by the evidence, their verdict should not be disturbed.

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DENIO, Ch. J. The fact that H. B. Cromwell was the lessee of the pier No. 9, did not confer upon him or the vessels which he owned any exclusive right to its possession, use or control. By force of the lease he became entitled to the wharfage accruing at the pier. So far as it was used by his own vessels or by vessels in which he was interested, the wharfage, if there had been any, was to be paid by the same party who was entitled to receive it. So far as it was made use of by other parties, he, as the grantee of the city, suc ceeded to the rights of the corporation in respect to wharfage. It was, notwithstanding the lease, a public wharf, and the vessels resorting to it, whether they were those of the lessee or of other parties, were subject to the general rules of law, regulating the use of the wharfs, slips and piers, and

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Opinion of the Court, per DENIO, Ch. J.

the mooring and stationing of vessels. (Laws 1850, ch. 72, $ 3.)

The act of 1858, conferring the exclusive right to the use of wharves upon certain steamboat lines and single boats, does not, in its enumeration, embrace the lines or vessels in which Mr. Cromwell was interested. (Laws, ch. 161, $ 1.) It is consequently inapplicable to this case.

It follows that neither he nor the persons associated with him in business, could place structures upon the pier for their own convenience, which should materially incumber it or interfere with its free use, for purposes connected with navigation by the general public, however advantageous the erection might be to him or those interested with him. The end of the shed in question substantially cut off the outer end of the pier from the adjacent water, leaving only about three feet of ground between it and the river, a space quite insufficient for the stowage of property received from shipboard or intended to be laden upon water craft. The persons maintaining this barrier of course controlled the fastenings of the door which was inserted in it, and without their license goods could not be carried along the pier to or from vessels lying at the end. But if the door were left always open, the space for landing would be reduced from forty feet to ten feet. It cannot be denied but that this was an incumbrance of the pier, nor but that it interfered essentially with its free use.

It is no answer to say that the shed would be useful to Mr. Cromwell's vessels, or that other persons could swing certain kinds of property through the gate without difficulty. The language and the obvious policy of the statute is, that these piers and bulkheads should be kept wholly clear of incumbrances, and it will not answer for parties permanently to engross portions of their area, and then ask a jury to speculate upon the degree of inconvenience which the public would suffer, and whether it was not fairly balanced by the advantage of the structure which constituted the incumbrance. The language of Lord Denman, in The King v. Ward (4 Adolph. & Ellis, 384), approved of by this court in Davis v. The Mayor, &c., of N. Y. (4 Kern., 525),


Opinion of the Court, per Dexio, Ch, J.

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is peculiarly applicable to this question. It is said, in effect, that capitalists or others cannot be permitted to interfere with known public rights from motives of personal interest, on the speculation that the charges made may be rendered lawful by ultimately being thought to supply the public with something better than what they actually enjoy. I am of opinion that the judge might properly. have charged that this fence was, in itself, an incumbrance of the pier, and that its authors were liable to the penalties prescribed by the act. The charge actually given was more favorable to the defendants than the law entitled them to.

The question whether the three defendants who were prosecuted were all liable for the penalties was one of fact, to be determined upon a consideration of all the evidence in the case. The shed, it is said, was erected for the accommodation of the steamship lines of Mr. Cromwell, in the navigation which was prosecuted by their means to and from the port of New York. It was shown to have been erected under the direction of Mr. Cromwell; but whether he acted in its erection as a member of, and in behalf of, his firm, or as the owner of the steam vessels, is not certain. Mr. Clark's testimony is, that he acted solely in its erection; but this was rather an inference than the statement of a fact. The expenses of the workmen who put it up were actually paid by the firm and entered on its books. They were reimbursed for these expenses by charging them to the steamers, in certain proportions, in the same manner that they charged the other expenses. They collected the freight and charged the expenses, and were allowed for them in their settlements. It is material to bear in mind that the business of the firm was not limited to the steamers of Mr. Cromwell's lines. It embraced the business of whatever steamers came consigned to their house. I gather froin the testimony that the wharf charges, embracing the erection of this shed, were averaged among the several vessels for which the house of Cromwell & Co. were the consignees. It was a part of their business to provide any accommodations upon the wharf which they conceived necessary to their business of receiving and ship

Opinion of the Court, per DENIO, Ch. J.

ping goods .carried by the vessels to which their agency extended. The wages of Peirson, who was the receiving clerk of the concern, and attended to the business on the wharf, were of the same character. These wages were paid by the steamers in proportion to their respective business. And yet I do not doubt but that he was the servant of the firm. No privity of contract could well exist between him and the owners of the several steamers which came consigned to the firm. So, as to this shed, neither one or all of the owners of the vessels who were accommodated by it, can be said to have erected it. The firm, which was their common agent, built it for the accommodation of the ships, and for the purpose of facilitating the business of their agency. They maintained it for the same objects and purposes. Although they had a right to charge the cost of erecting and keeping it up, to the vessels which came within the scope of their agency, , along with their commissions and other expenses, they were, as between themselves and the public authorities, the actors in erecting it; and if it was a violation of law, they were, in my opinion, responsible for the consequences. There was, moreover, evidence, in the declarations of Mr. Clark to the plaintiffs' witness, that they put it up in order to secure an advantage of the vessels for whom they were agents. This was, it is true, contradicted by Mr. Clark, as a witness for the defendants, but it raised a question for the jury. Upon the whole, I am of opinion that the judge would not have been authorized to pronounce, as matter of law, that Cromwell was the only one of the defendants answerable for these penalties, and on that ground to withdraw the case from the consideration of the jury. The nature of the defendants' agency depended upon questions of fact arising upon the testimony of Clark, as to the manner of transacting the business of the firm and keeping its accounts, and they were rightfully submitted to the jury. The remarks of the judge, as to certain testimony having established a prima facie case, were not objectionable. It is the duty of a circuit judge to group the evidence and to indicate the bearing of its several parts upon the issue to be determined.

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