author: . Robertson, Ch. J. McCunn, J. (dissenting.)

text:
    The Board of Commissioners of Pilots, plaintiffs, vs. The Erie Railway Company, defendants.
    1. Sheds, buildings, gates and fences upon piers or bulkheads in the port of New York, whether consisting of loose materials, or built upon and affixed thereto, are obstructions incumbering such piers or bulkheads, and interfering with their free use, within the meaning of the 8th section of the statute of 1857. {Laws of IY Y. 1857, p. 487,) as amended by the 5th section of the act of 1858. {Laws of 1858, p. 363.)
    2. The occupants of piers or bulkheads thus incumbered, are liable to the daily penalty specified in the statute, if they fail to remove the obstructions, although they were originally placed there by others. By such neglect, and by using and occupying the erections as their own, they will be deemed to keep them there, within the intent of the 5th section of the act of 1858. McCunn, J. dissented.
    3. Such incumbrances forming no part of the premises demised to the lessees of the piers or bulkheads, the latter are not bound to return them to the . lessors, at the expiration of the term; but they may remove them as incumbrances of the highway or as interfering with their right of wharfage.

      4. The offense punishable under the act of 1857, was an interference with the free use of a bulkhead, and not merely an interference with commercial uses, or the purposes of commerce, access to shipping, or transaction of business.
    5. The statute intended to commit to the Board of Commissioners of Pilots the guardianship entirely of so much of the highways as bordered the water against all nuisances by incumbrances; and not to separate persons, engaged in commerce from the rest of the community, so as to have their interests, alone, protected. And they used the proper language to authorize a prosecution for all such nuisances.
    6. A notice to the occupants of piers or bulkheads “to remove from such bulkheads the buildings, sheds, gates and fences which are now there placed or kepi'' by the occupants, is sufficient.
    7. The notice is a simple warning to remove a nuisance within twenty-four hours, or. be subjected to the statutory penalty. After such warning both parties act at their peril; the occupants in omitting to remove the articles complained of; the commissioners of pilots in bringing an action for the penalty, if they do not remove them. Such commissioners have no power to determine what is an ohtruction and what is not, any more than to decide whether the persons notified created it or not.'
    8. Such a notice will not be vitiated by embracing too much. If the persons notified are responsible for the presence of some of the articles on the bulkhead, which they are warned to remove, and those articles obstruct the free use of such bulkhead, their failure to remove them, after notice, will render such persons liable,' although they have in the written document containing such notice been also required to remove some which are not obstructions, or for whose presence on the bulkhead they are not responsible.
    9. There is no objection to combining in one paper notices to remove obstructions on different bulkheads.
    10. The law makes no distinction, as respects the days of the week for which the penalty is to accrue. A recovery may, therefore, be had for the full number of days after the expiration of the time limited in the notice, without excluding Sundays.
    (Before Robertson, Ch. J., and Garvin and McCunn, JJ.)
    Heard October 11, 1867;
    decided January 6, 1868.
    This action was brought to recover a penalty of $25 per day, imposed by section 8 of the act “ to establish regulations for the port of New York,” passed April 16, 1857, as amended -by chapter 226 of the Laws of 1858. {Laws of 1857, vol. 2, p. 487, § 8. Id. 1858, p. 363, § 5.)
    The complaint averred that the defendants, being in the use and occupation of certain bulkheads in the city and port of New Y"ork, between the piers known as piers Nos. 30 and 31, 31 and 32, and 32 and 33, North river, placed andkept on the said bulkheads obstructions built upon and affixed thereto, consisting of buildings, sheds, gates and fences, whereby said bulkheads were incumbered and their free use interfered with; that the defendants were duly notified by the plaintiffs to remove the obstructions within twenty-four hours,' and failed to comply with such notice, and demanded judgment for the penalty imposed by the law. The answer denied generally the allegations of the complaint, except that it admitted that nothing was done by reason of the notice, and alleged that the defendants were only lessees of the piers in question.
    At the trial, before Justice Jones and a jury, it appeared that the piers in question (Nos. 30, 31, 32 and 33 North river,) were used and occupied by the defendants, the Erie Railway Company. The bulkhead between piers 30 and 31 was occupied by the sheds, gates, buildings and fences of the defendants ; a large shed covered the whole bulkhead between piers 30 and 31, with gates and fences, the whole permanently affixed to the bulkhead; a platform, for the reception of freight had been extended beyond the bulkhead a distance of twenty-five feet. On the bulkhead, between piers 31 and 32, the defendants had placed and kept a building used as their freight office. On the bulkhead, between piers 32 and 33, the defendants occupied a small office for a delivery clerk. The Board of Commissioners of Pilots, whose duty it is to see that the law regulating the harbor is enforced, notified the defendants to remove these structures, by a written notice in the following words and figures:

      “New York, November 28, 1865.
    At a regular meeting of the Board of Commissioners of Pilots, held this day at their office, Eo. 69 South street, in the city of Eew York, the following was, on motion, adopted:

      Whereas, The bulkheads herein described are incumbered and their' free use interfered with as follows, viz.: The bulkheads between piers Eos. 30 and 31, 31 and 32, and 32 and 33, Eorth river, by buildings," sheds, gates and fences, owned by the 6 Erie Eailway Company,’ * * * And whereas, in the judgment of this board the said incumbrances exist and are maintained in violation of the provisions of section eight of the act of the legislature, entitled ‘An act to establish regulations for the port of Eew York,’ passed April 16,1857, and the acts amendatory thereof, and the same ought to be removed;

      Therefore, resolved, That the person or persons severally placing or keeping the said incumbrances upon the said bulkheads be notified to remove the same within twenty-four hours after such notice, and that such notice be given by serving upon him or them respectively a copy of this resolution, attested by the president and secretary of this board. A true copy from the minutes,
    Attest: Bussell Sturgis, President.

    F. Perkins, Secretary.

    To the ‘ Erie Eailway Company: ’
    Please to take notice that, pursuant to the provisions of section 8 of the act of the legislature, entitled ‘An act to establish regulations for the port of New York,’ passed April 15, 1857, (as amended by section 5 of chapter 226 of the Session Laws of 1858,) and of the resolution of the Board of Commissioners of Pilots, a copy of which is herewith served upon you, you are hereby notified and required to remove from the bulkheads between piers Nos. 30 and 31, 31 and 32, and 32 and 33, North river, the buildings, sheds, gates and fences, which are now there, placed or kept there by you, within twenty-four hours after service on you of this notice. And if you fail to comply with this notice, you will be liable to the penalty prescribed by law.
    New York, Nov’r 28th, 1865.
    By order of the Board of Commissioners of Pilots.
    Russell Sturgis, President.”
    This notice was not complied with, and the buildings remained 107 days from the service of the notice.
    All the piers in question, with the adjacent bulkheads, were public piers and bulkheads (i. e. piers and bulkheads belonging to the córporation of New York,) qnd all the rights of the defendants in relation to their occupancy; were derived from leases made by the mayor, aldermen and commonalty of the city of New York, (dated April 25, 1865,) and by which, only the wharfage to be derived from the same and the right to collect such wharfage is granted, subject to the laws of the state of New York.
    The defendants’ counsel offered evidence tending to show that the erections complained of did not obstruct or hinder commercial business, or the convenience of transacting it, which was ruled out, and the defendants’ counsel excepted.
    The introduction of the notice before mentioned in evidence was objected to by defendants’ counsel, on the grounds, (1.) It was not served as directed by the act. (2.) It is not a notice that these erections are obstructions, or a notice to remove any obstructions, but, if any thing, is a notice about, and to remove incumbrances. (3.) To make it valid and effectual, it should have complied with the act of May 12, 1865, by containing a copy of the section under or in pur- ■ suance of which the notice was given. The judge overruled each of those objections, and to each of said rulings the counsel for the defendant separately excepted, and the notice was read in evidence.
    The defendants’ counsel moved to dismiss the complaint on the grounds:
    1. That possession of neither of the bulkheads had been shown in the defendants.
    2. That it had not been shown, that the defendants placed, kept or erected the alleged incumbrance or obstruction.
    3. That it had not been shown, that what was noticed to be removed was any obstruction, or that it interfered with the free use of the piers or bulkheads.
    Each of these motions was denied, and to the ruling, as to each, the defendants’ counsel separately excepted.
    The defendants’ counsel asked the court to instruct the jury:
    1. That a recovery could not be had for a greater number of days than it appeared the defendants kept or continued all of the erections or incumbrances charged in the complaint. The court declined so to rule. The defendants’ counsel excepted to the refusal of the court so to instruct the jury.
    2. That the penalties could not extend over a longer period than it appeared the defendant occupied all the three bulkheads mentioned in the notice and complaint. The court declined so to charge. The defendants’ counsel excepted to the refusal.
    3. That the defendants were not responsible for the erection on the bulkhead between piers 32 and 33, north of the middle line between these piers. The court so charged the jury.
    4. That the notice requiring the defendants to remove all the erections on the bulkhead, between piers 32 and 33, as well as between the other piers, and the company not having erected or kept the building on the north half of the bulkhead, between piers 32 and 33, the notice was excessive and ineffectual as a "basis for penalties; the company was not bound to conform to the whole of it, and it cannot be construed to bind them as to any part, that part not being separated in the notice from the residue. The court declined so to charge. The defendant’s counsel excepted to the refusal so to instruct the jury.
    5. That a conditional notice is not valid as a basis of penalty; and this notice, by devolving upon the defendants to decide what erection they made or kept, was not an absolute notice as to any portion of the erections, but was conditional as to all, and, therefore, invalid. The court declined so to charge. The defendants’ counsel excepted to the refusal so to rule.
    6. That the plaintiffs were not entitled to recover penalties for the several Sundays embraced in the period, under which the penalties embraced in the verdict should extend. The court refused so to instruct the jury, and to such refusal the counsel for the defendants duly excepted.
    The court instructed the jury, that upon the undisputed facts of the case, the defendants were liable to the penalty of twenty-five dollars per day for every day during which the fences and gates on the three portions of the bulkheads and piers, occupied by the defendants, were kept there, after notice from the plaintiffs to remove the same, and directed a verdict for the plaintiffs for penalties for 107 days, from December 2, 1864, to March 20, 1865, making $2675.
    The defendants’ counsel objected and excepted to the said direction of the court.
    The jury, under such direction of the court, found a verdict for the plaintiffs for the penalties at $25 per day, for 107 days, being $2675.
    The defendants’ exceptions were ordered to be heard at the general term, and judgment was suspended.

      Wm. Allen Butler, for the plaintiffs.
    I. The structures in question- being built upon public bulkheads in the navigable waters of the harbor of Hew York, without any authority of law, were in violation of the provisions of section 8, of the act of April 16, 1857, establishing regulations for the port of Hew York, (as amended) and being unauthorized by law, constituted a public nuisance, irrespective of any question of public convenience or inconvenience. (Act April 16, 1857; Laws 1857, vol. 2, pp. 487, 488. Id. 15, 1858; Laws 1858, p. 363. Fowler v. Saunders, Cro. Jac. 446. The King v. Russell, 6 B. & C. 566. The King v. Carlile, 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 Denio 524. Davis v. The Mayor of New York, 4 Kern. 506; and see p. 525, arad eases collected there. The People v. Vanderbilt, 38 Barb. 282. Same case, 26 N. Y. Rep. 287. The Board of Commissioners of Pilots v. Clark, 33 id. 251.)
    1. The free and unobstructed use of the piers and bulkheads in the city of Hew 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.
    2. Without special license or authority conferred, directly or indirectly, by act of the legislature, no private person or corporation has any right to interfere with the free use of a pier or bulkhead, 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 it for the purpose of business.
    3. Even though the structures in question may be advantageous to the shippers of goods by the defendants’ railroad line, and thus beneficial to apart of the public, this forms no justification for placing or keeping them on the bulkheads, inasmuch as they deprive the rest of the public of the free use of the bulkheads, which they are lawfully entitled to enjoy, as to which the legislature have given no special privileges to the lessees. See cases cited above, and also as to the public right in the piers and bulkheads in the port of Hew York, and the power of the legislature to regulate their use. (Act April 17, 1784, Jones and Varick, p. 125, § 8. Act March 31, 1801, Davies’ Laws relating to city of N. Y. 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 Cowen, 349.);
    II. There was no ground for a dismissal of the complaint, and the motion to -dismiss was properly denied.
    1st. The placing or keeping of the alleged obstructions by the defendants was sufficiently proved; in the absence of an express authorization by law the structures complained of were illegal, and the fact of their continued and permanent existence for the convenience of the defendants, and the transaction of their business, was clear proof of an obstruction to the free use of the bulkhead, within the plain meaning of the law.
    2d. The objections as to the sufficiency of the proof were also obviated by the subsequent evidence introduced.
    m. There was no error in the ruling at the trial in respect to the sufficiency of the notice given by the plaintiffs requiring the defendants to remove the obstructions.
    1st. The first objection, as to the service of the notice, was cured by the admission.
    2d. The notice being intended by the statute to prevent incumbrances of the piers and bulkheads by obstructions, &c. was sufficiently explicit in directing the removal of “incumbrances and besides, it specified “ buildings,” &c.
    3d. The act of May 12, 1865, providing for the making effectual of a service of notice given by the president of the board, without previous direction of the board, does not apply to cases when the notice is originally the act of the board, and does not in any way limit, restrain or vary the terms-or provisions of section 8 of the act of 1857.
    IV". There was no error in the ruling of the court at the trial in refusing to charge the several propositions submitted by the defendants’ counsel in the propositions numbered respectively 1, 2, 4, 5 and 6.

      1st. As to request No. 1. The defendants were liable to the penalty prescribed by the statute so long as they failed to comply with the notice which, in accordance with the terms of the law, directed them to remove all the buildings, sheds, gates and fences placed or kept by them on the bulkheads in question. A partial compliance with the notice would not discharge the defendants from liability, and the answer of the defendants expressly admits and avers that they did nothing by reason of any notice relative to removing any thing referred to in the complaint.
    2d. As to request No. 2. The length of time during which the defendants occupied the bulkheads respectively, is immaterial so long as they failed to comply with the notice, and kept the obstructions on either of the bulkheads.
    3d. .As to request No. 4. This was based on a misstatement of the contents of the notice, which did not require the defendants to remove all the erections on the bulkhead between piers 32 and 33, as well as between the other piers, but only those placed or kept there by the defendants. The fact that there was one building on one of the bulkheads not' placed or kept there by the defendants, in respect to which no notice is given, and which is not included in the diagram showing the erections complained of, is no excuse for the defendants’ failure to remove those which they did place or keep on the premises in question.
    4th. As to request No. 5. The notice was not in any sense “ conditional.” The defendants were keeping on all the bulkheads specified certain buildings, sheds, gates and fences for the use of their own business, and in clear’violation of the law. The notice directed the removal of all of the buildings, sheds, gates and fences placed or kept there by the defendants, and was limited to such. It was operative without qualification or condition in respect to all the obstructions maintained by the defendants.
    5th. As to the sixth request. The statute does not except Sundays, and there is no law for substituting “ week days” for “days.” The defendants could have stopped the accruing of the penalties on any day, had they they complied with the notice.
    D. B. Baton, for the defendants.
    I. The plaintiff's are authorized to take action in only two cases: where loose articles are piled on a pier or bulkhead, so as to obstruct its use; and when any fixed erections constitute an obstruction. The complaint in this case is only of fixed erections on bulkheads.
    1. Before the board is authorized to take any action, by reason of such erections, it must appear that such erections were an “obstruction,” which “incumbered” or interfered with the free use of the bulkheads. This much the section clearly implies, if it does not specifically state. Without so far refining as to claim that they must be not only “obstructions,” but also such obstructions as “ incumber ” a bulkhead, or interfere with its free use, it is very clear that something must be obstructed; and there can hardly be a doubt, that it must appear that the proper use of the bulkhead, for commercial purposes, must be obstructed, or the plaintiffs have neither right nor duty to take any action. In the absence of such obstruction, action by the board would be needless, as well as vexatious and illegal. It cannot require every erection to be removed. The erection must amount to an obstruction, or the board has nothing to do with it. If there really be obstructions, which are not removed within twenty-four hours after notice, the plaintiffs may sue for and recover a penalty of $25 per day during the time they “ remain on such bulkhead.”
    2. The plaintiffs proceeded on that theory of this section ; for what was ordered removed, is in the complaint charged to be an “obstruction,” &c. “whereby said bulkheads were incumbered, and their free use interfered with,” &c. and it is charged that said obstructions were not removed within twenty-four hours. Issue is taken on these allegations, and the question is directly raised whether what was put, or was on the bulkheads, was or not an “ obstruction ” which incumbered the free use of the bulkheads.
    II. It cannot be maintained that the question, whether what was erected or maintained was an “ obstruction,” is a question solely referred to the board, or upon which it1 has finally passed, for these reasons:
    1. The section does not, in any way, indicate or imply that such question is referred to the discretion or judgment of the board. The powers of the board being in derogation of the common law rights, and under special statute, are not to be enlarged by implication, but must be strictly construed. This rule has been strictly applied in a similar case. (Board of Commissioners of Pilots v. Vanderbilt, 31 N. Y. Rep. 265. Gilchrist v. Comfort, 34 id. 235.)
    2. The complaint has tendered the issue, which the defendants have accepted, whether the erections complained of are “ obstructions,” &c. but nowhere alleges, nor is there any proof, that the board did, or undertook to decide that the said alleged erections were obstructions in any sense.
    3. The notice served, showing the proceedings of the board, is so far from disclosing any action of the board in the nature of deciding'said erections to be “ obstructions,” that it does not any where contain the word “ obstructions,” or its equivalent.

    III. The court must pass on the questions as to there being any “obstruction,” or this board'may order any thing whatever about a bulkhead removed, regardless of its being an obstruction to, any body or any thing, and without even the responsibility of so declaring it, and there would be no possible redress or defense available in the courts. The notice authorized to be given by the act is not a ^ notice to remove an “ incumbrance ” merely, (for that may mean something less than what obstructs,) but to remove an “ obstruction ” only. ■ The notice proved was objected to, and exception to its admission in evidence taken, because it was not a notice relative to any actual or even alleged “ obstruction.”
    IV. If our views are correct as to the interpretation of the section and the issues to be tried, then no cause of action is made out, for the reason that the plaintiffs made no proof of any “ obstruction ” of any thing, in any sense of that term; and it was error to exclude the defendants’ several offers to prove that all that was complained of was no obstruction whatever, &c. &c. and the exceptions were well taken. These views were urged on the trial, in a motion to dismiss the complaint.
    On the plaintiffs’ theory they may recover $25 of the defendants per day, because they have not removed, what the plaintiffs have not decided to be an obstruction; what the plaintiffs have no authority to make any final decision upon, and what the defendants are ready to prove is not 'an obstruction within the statute, nor. any hindrance, but a great convenience to commerce.
    V. The notice served, not pointing out any thing as an obstruction, was not within the statute, and of no effect.
    1. No suit can be maintained except for failure to remove, within .twenty-four hours, “ obstructions,” which the party complained of has been duly “ notified,” since the act, to remove. As severe penal consequences follow a failure, the notice ■must be certain, specific and absolute. If conditional" or uncertain, it can have no effect. It is the notice served, and not the alleged action of the board, that is decisive. (See 31 N. Y. Rep. 269.)
    2. It Avas not absolute or certain, because it left the party notified to decide Avhat it “placed or kept ” on'the bulkheads. It at most only required the removal of such “buildings, gates, sheds and fences,” as it might decide they “ kept or placed.” There can be no failure of compliance with such a notice proved, except by proof that the party notified decided, that it did place or keep said buildings. 8

      VI. If the notice be construed to be absolute and certain, it must mean that the defendants are to remove dll the buildings, sheds, gates and fences there were on all the bulkheads between pier 30 and pier 33. There is no intimation that less than all are an incumbrance or an obstruction, and a removal of less than all would not comply with the notice. In fact, the whole together are treated as one violation and one incumbrance, for which one penalty is incurred. The evidence showed that the defendants only had possession or control to the middle of the bulkhead between piers 32 and 33, and never occupied any portion of the bulkhead north, of the middle line between piers 32 and 33. It also appeared that on this north half of the bulkhead, between piers 32 and 33, there was a building, in respect of which the defendants had neither control nor possession. Therefore the notice, in requiring the defendants to remove this north end building—that is, the incumbrances on bulkhead -between piers 32 and 33—was too comprehensive, and could not be complied with, and was hence void.
    VII. The defendants cannot be held liable for erections they did not make, or change, or o.wn.
    1. It appeared, as already shown, that the only rights of the defendants to the piers or bulkheads are by lease from the city, and it was proved that the defendants were a recent corporation, created on the 25th June, 1861, after the failure of the old New York and Erie Railroad Company, and that the erections complained of (most of them, at least) are now as they were .before the defendants had.an existence, the defendants having done nothing to them.
    2. This leased property the defendants allowed to remain in the condition they found it in 1861, when they leased it, and they were neither guilty of “ placing or keeping ” the erections there, within the meaning of section ,8. The leases bound them to -return the property to the corporation at the close of the leases. The act does not authorize them to destroy, under such a notice, what they hired, and were bound to surrender. The words “ placing and keeping ” are not applicable to the mere negative conduct of allowing leased buildings to remain—to mere forbearance to commit waste and destruction of leased property.
    3. There is no proof that the defendants “kept,” or even used, the erections. Had the defendants erected the buildings, the case would have been different. (Board of Commissioners, &c. v. Clark, 33 N. Y. Rep. 251.)
    VHI. We claim that the days for which the penalty is given, means secular- days only, and do not include Sundays ; and that the judge erroneously refused to exclude Sundays as days for which the penalty should be given. The law does not contemplate that commercial business will be transacted, at the bulkheads on Sundays; and hence it cannot be held to contemplate that a penalty will be incurred for “obstructing” or hindering such business on Sundays ; and to sustain the verdict for Sunday penalties -is as unsound in legal theory and principle as it is unfounded on any public inconvenience, or actual business transaction.
    IX. This pretended notice was utterly invalid, for not containing a copy of the section 8 of the law on which it is founded, as made necessary by the section 1 of the 712th chapter of the Laws of 1865. Such penal notices are strictly construed, (31 N. Y. Rep. 269;) and this statute was enacted at the next succeeding session of the legislature after such decision. The policy of both is apparent to give to the party, who is to be so punished for disobedience, a clear, direct and prompt reference to the law, for he has not even twenty-four hours to consult a lawyer.
   . Robertson, Ch. J.

The admission of the defendants on the trial that they “ held the occupancy of the space ” between the south side of one pier and the middle of a bulkhead between two piers beyond it, including the intervening bulkheads, by leases from the corporation of the city-of Hew York, which were read in evidence, virtually acknowledged an actual occupation of the bulkheads themselves. Indeed the defendants actually claimed that they had no right to remove the incumbrances complained of, because they had covenanted to surrender the same as being part of the demised premises. So far from giving any right to the soil, such leases provide against receiving any compensation “ for the occupation of the top or surface of the piers for any purpose.” They were, in fact, a mere demise of the right of wharfage as an incorporeal hereditament. They, therefore, were not justifiable in occupying such space under such demises. (See Commissioners of Pilots v. Clark et al. 33 N. Y. Rep. 251, 264, per Denio, Ch. J.)

In addition to this, admission, the agent of the plaintiffs (Marsten) testified in substance, that the bulkhead between piers 30 and 31, which ran from pier to pier on the shore line, was occupied, by sheds, gates, buildings and fences by the defendants, and a large shed covered the whole space between such piers. There were gates, fences and a building, which were permanently affixed to the bulkhead and extended across the entire width; also a platform built beyond the bulkhead projecting iqto the water, averaging in breadth twenty-five feet from the string piece of the bulkhead, which covered the whole of the latter from pier to pier. The fence extended from the north side of pier 30 to the south side of pier 31. It was all inclosed by gates and fences. A building stood on the bulkhead between piers 31 and 32, close to the string piece, about six feet square, which was occupied by the defendants as a freight office. The space between a continuance of the lines of piers 30 and 31, extending from the outer edge of the bulkhead between them, to a line at some distance therefrom, and running parallel therewith along "Wqst street, appeared by a diagram exhibited on the trial, (proved to be correct,) to be inclosed, and, as was testified to, by a fence, interrupted only by six gates. On the "north side of pier 32, only a small office, six feet by nine in size, was occupied by the defendants as a delivery office, the use of which was discontinued, and it was removed to the south side of the pier.

The first question of law presented is, if such sheds, buildings, gates and fences upon the bulkheads in question were as either loose materials, or built upon and affixed to them, obstructions incumbering such bulkheads, or interfering with their free use within the meaning of the 8th section of the statute of 1857, (N. Y. Sess. L. 1857, p. 487,) as amended by the 5th section of the act of 1858, (N. Y. Sess. L. 1858, p. 363,) the defendants are liable for not removing them, because they kept them there within the intent of such amended provision. The statute gives the plaintiffs the option to proceed either against those who place or those who keep obstructions upon piers or bulkheads, whom it makes equally amenable, since the former cannot always be so readily discovered. Eor the same reason, where there was a difficulty of discovering both, the plaintiffs had a right to remove merchandise. The defendants used and occupied the erections in question as their own, and they may, therefore, be fairly said to have kept them on the bulkheads within the meaning of the statute. As they formed no part of the demised premises, the defendants were not responsible for them to the owners. They might have removed them as incumbrances of the highway, or interfering with their right of wharfage. Their conduct was sufficient to have charged them in an action for a nuisance as continuing it. Their ownership or hiring them was immaterial; they may have.taken possession of such incumbrances tortiously ; they acted as their owners, and are,, therefore, liable for keeping them there.

The offense punishable under the statute is an interfering with a free use of a bulkhead, which is as general as it can be, since it is not limited either as to mode or persons. Nothing is said of an obstruction, as interfering either with commercial uses, or purposes of commerce or access to shipping or transaction of business. Indeed, no merchandise which incumbers the bulkhead is permitted by the statute to remain over twenty-four hours, after the notice it provides for is given. Bulkheads are part of the highway, and entitled to be traveled over in the same way as any other part. The facility of passing round them, or leaving the other part unblocked up, does not affect the question. In Davis v. Mayor, &c. of New York, (14 N. Y. Rep. 524,) Chief Justice Denio lays down the rule that a “ permanent, habitual obstruction in a public street or highway is an indictable nuisance, although there he room left for carriages to pass.” Even a benefit to the community by such an obstruction does not justify any interference with the ordinary rights of the public. (Commissioners of Pilots v. Clark et al. 33 N. Y. Rep. 265. King v. Ward, 4 Ad. & El. 384. King V. Russell, 6 Barn. & Cress. 566.) The statute evidently intended to commit to the plaintiffs the guardianship, of so much of the highways as bordered the water, against all nuisances by incumbrances, and not to separate those engaged in' commerce from the rest of the community, so as to have their interests alone protected. And it used the proper language to authorize a prosecution for all such nuisances. As it was impossible from the very nature of the erections in question to prove that they did not interfere with the free use of the wharves, all questions attempting it put to witnesses were properly excluded. The ruling of Chief Justice Denio, in the case of the Commissioners of Pilots v. Clark, (ubi supra, pp. 265, 266,) before referred to, that the judge (presiding on the trial) might properly have charged that a fence erected and placed in a similar manner to that in question, was in itself an incumbrance of the pier, warranted a similar course in this case. The judge who presided was therefore right in withdrawing all consideration of the question of fact from the jury.

It was contended, however, that the defendants were not liable because no proper notice within the meaning of the statute in question had ever been given to them to remove the erections complained of. The provision in question requires the plaintiffs to notify either the persons who had placed, or those who kept merchandise or other obstructions on a bulkhead which incumbered it or interfered with its free use to remove such obstruction; meaning, of course, the article obstructing, and not merely a removal of the effect produced by it. The notice actually given was “to remove from the bulkheads between piers Nos. 30 and 31, and Nos. 31 and 32, and Nos. 32 and 33 North river, the buildings, sheds, gates and fences, which are now there placed or kept by the defendants. The objections taken to this notice are: First. That it does not undertake to pronounce the articles enumerated an obstruction. Secondly. That if it leaves the defendants to determine what articles they had placed or kept on the bulkheads, it is not a sufficient description; and, Lastly, if intended to require that all the articles on the bulkhead should be removed, it included a building between piers 32 and 33, neither placed nor kept there by the defendants.

These objections are based on the idea that the defendants are entitled to retain every thing which they have put or kept on the bulkheads in question, whether its free use is thereby obstructed or not; unless the notice to remove extends to, and does not include any more than exactly, what they have so put or kept there. Upon that principle a mistake of a single article, either as to its being put or kept by the party notified on the bulkhead, or being part of the obstruction, would be fatal, and the public highway would remain obstructed without the power of punishing under the statute. There might be some ground for such doctrines, if the articles to be removed were innocently on the bulkhead, and only became noxious by their being kept there contrary to the requisition, but the penalty is given, not for disobeying the orders of the plaintiffs, but, in the words of the statute, for “ a failure to comply with such notice, and remove such obstruction.” The offending party receives no injury by being notified to remove too much; he is to be supposed to know whether he has violated the law already, and the notice is neither an accusation nor indictment; nor does it form the basis of a legal proceeding. It is true, it is a condition precedent to a right to recover, but is a simple warning to remove a nuisance within twenty-four hours, or he subject to the statutory penalty. The plaintiffs had no power to determine what was an obstruction, and what was not, any more than to decide whether the defendants created it or not. After such warning, both parties acted at their peril; the defendants in omitting to remove the articles complained of, the plaintiffs in bringing an action for the penalty, if they did not. What was to be removed was described with sufficient particularity to enable the defendants to know what was intended. They were then bound to decide for themselves, whether they were responsible for its being an obstruction. The requisition by such a notice, differs entirely from that regulated by the second section of the statute of 1860, involved in the case of Commissioners of Pilots v. Vanderbilt, (31 N. Y. Rep. 265.) The notice under that act, needed a previous determination by the plaintiffs, as a board acting judicially, of the time within which a supposed encroachment in the harbor of Eew York should be removed. The statutes of 1857 and 1858, prescribe the time for the removal of the offending articles after notice, until the lapse of which no penalty begins to be incurred; so that nothing is left to the discretion of any one. They, moreover, in addition to a notice merely calling attention to the nuisance as in the statute of I860,'explicitly prescribe that there should be a notification or warning to remove it. Such warning is, of course, futile and void as to articles, which "form no part of any obstructions, or for whose maintenance as part of one, the defendants are not responsible. But if they are responsible for the- presence of some of the articles on the bulkhead, which they are warned to remove, and those articles obstruct the free use of such bulkhead, I cannot perceive on what principle their failure to -remove them after notice, should not make them liable, although they have in the written document containing such notice been also required to remove those which are not obstructions, or for whose presence on the bulkhead they are not responsible. The statute, besides, does not prescribe the form of the notice, otherwise than that it shall notify the person served with it to remove the designated obstruction. Whatever else, therefore, is in it is immaterial. Nor is there any objection to combining notices to remove obstructions on different bulkheads in one manuscript. In this case the defendants were guilty of incumbering three different bulkheads, and liable, therefore, to three sets of penalties, and were notified to remove such incumbrances on each bulkhead. The plaintiffs, however, thought proper only to claim one penalty, and had a right to select therefore, any one of the failures of the defendants to remove, what they had been warned to remove, as the foundation of the penalty. The notice did not serve to make the defendants more or less, the authors or maintainors of the obstruction complained of; they knew whether they were so, and were not required to be governed by it, in determining' whether they were or not. Whatever the present notice therefore may contain, beyond the designation of what was an obstruction, for which the plaintiffs considered the defendants responsible, and for which they were so in fact, a notification to remove it was surplusage, and does not vitiate the intended effect' of the notice as a warning. But, in fact, it actually limits the articles, which the defendants are required to remove, to those placed or kept by them on the bulkheads, enumerated therein, which they are to be presumed to know; and does not require them to remove all the articles on such bulkheads.

The necessity of serving with the notice given a copy of the law, under the first section of the statute of 1865, (N. Y. Sess. L. 1865, ch. 712,) is confined to notices served by the president of the plaintiffs, without their previous' authority. In this case, the.plaintiffs themselves authorized the notice.

The law makes no distinction as to the days of the week, for which the penalty is to accrue. A free use of a bulkhead may be as necessary on Sunday as any other day. The plaintiffs were, therefore, entitled to recover for the full number of days, since the twenty-four hours after the notice were up, without regard to Sundays.

These considerations dispose of all the requests to charge, as well as the exception to the charge. No error having been committed on the trial, the exceptions must be overruled, and judgment given for the plaintiff for the verdict, with costs.

Garvin, J. concurred.

McCunn, J. (dissenting.)

This action was brought to recover from the defendants a penalty of $25 per day, for 107 days, under a statute passed in 1857 and amended in 1858, for neglect in conforming to a notice of the plaintiffs to remove certain obstructions on bulkheads between piers 30 and 31, 31 and'32, and 32 and 33, in the city of New York, in the Hudson river, for the period between December 2, 1864, and March 20, 1865. The most material question in this case is whether the erections complained of in the complaint were “ obstructions ” within the meaning of the act; because, if they were not obstructions, the Board of Commissioners of Pilots have nothing to do with them. The law fixes the penalty upon the defendants by reason of their being so, if they do not remove them when notified; and if the subject of complaint be not obstructions of commerce, then no penalty can attach. No one will pretend that every erection on the piers of this great commercial city, for the purpose of facilitating commerce, such as derrick cranes, sheds, and the like, are obstructions to commerce, unless they impede its operations or hinder or injure it in some way or other.

It cannot be contended that sheds and coverings placed there for the express purpose of' protecting perishable products brought hither by our merchant marine from all parts of the world for the use and comfort of our fellow-citizens, are obstructions or incumbrances, within the meaning of the pilot law; and if the Board of Pilot Commissioners,' or any other body, arbitrarily pronounce such sheds and coverings obstructions and incumbrances to commerce, without the aid of a court, especially where they are designed for protection and not for hindrance, such a power would be tyrannical, vexatious and unjust in the extreme.

The .court, at special term, therefore erred in not allowing the defendants to show before the jury that the grievances complained of were not incumbrances or obstructions.

But not only cannot the Board of Pilot Commissioners take upon themselves tp say what are and what are not obstructions, but the act and the section of the law under which they claim to recover, fail to indicate or imply that any such question is referred to the discretion or judgment of the board. Moreover, it has been held by this court, and affirmed by the Court of Appeals, in the case of the Board bf Commissioners of Pilots v. Vanderbilt (31 N. Y. Rep. 265,) that the powers of the board, being in derogation of the common law, and, under special statute, cannot be enlarged by implication, but must be strictly construed.

The complaint does not allege, nor does the notice say, nor can I find any proof in the ease, that the board does undertake to decide that the alleged erections were obstructions. •

It was, therefore, error to exclude the defendants’ several offers to prove that the erections complained of were no obstructions or hindrance.

The notice given by the board was offered in evidence, and objected to and allowed, and an exception taken. This brings up fully the question whether that notice was such an one as is required by the act. I think it was not. The notice must be certain and specific; if conditional or uncertain, it can have no effect, because it is the notice and not the action of the board that is decisive. (See case cited above. Also Gilchrist v. Comfort, 34 N. Y. Rep. 285.)

It appears that there are a large number of buildings, gates, sheds, fences and fenders kept or placed on these bulkheads or docks, and there is no intimation or pretension that all should not be removed. Now, the evidence shows that the defendants had possession or control of only a portion of the obstructions complained of. Therefore, the notice, in requiring the defendants to remove all, was too comprehensive, and could not be complied with, and was therefore void.

Not only was the notice imperfect in this respect, but the pilot commissioners should have sent with their notice a copy of section eight of the law on which the notice was founded. This is absolutely required by section 1, of chapter 712, of the laws of 1865.

I have shown how strictly penal statutes are construed, and this act of 1865 is in the same spirit, requiring a notice to “ contain a copy of the section under or in pursuance of which such notice is given,” and was enacted for the express purpose of thoroughly informing parties who are complained of for violating these penal laws what they contain.

The policy of both is apparent. It is to give to the party who is to be so punished for disobedience a clear, direct and prompt reference to the law.

The Court of Appeals says : “ The person offending is -to' be notified,” &c. He is to be notified to “ remove the obstructions, because the penally of $25 attaches every day.” (31 N. Y. Rep. 269.) And then the legislature added the reasonable condition that the notice shall afford the offending party a copy of the law he is charged to be violating.

But this notice does not contain any copy of any section, and is hence of no effect.

For these reasons, judgment should be ordered for the defendants, with costs.


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    Arthur M. Eastman, plaintiff and respondent, vs. The Mayor, &c. of the City of New York, defendants and appellants.
    1. A very serious question might arise as to how far the statute of 1855 makin,cities, &e. liable for the value of property destroyed by a mob or riot, (Laws of 1855, ch. 428,) was repealed, as to the cities of New York and Brooklyn, and the whole metropolitan police district, by the passage of the metropolitan police act, of 1857, (Laws of 1857, ch. 669,). if there were any means of escape from the binding authority of the decision in Darlington v. The Mayor, 4c. of New TorJc, (31 N. F. Bep. 164.) But the case of Baldwin et al. v. The Mayor, 4c. of New Fork, decided by the Court of Appeals, April term 1866, has not so disturbed the foundation of the decision in the former case, as to the constitutionality of the law of 1855, as to render it still an open question. Ber Robertson, Ch. J.
    2. Under the statute of 1855 it is not a question of diligence on the part of the city authorities. If the party damnified has not been guilty of any want of diligence on his part it is imperative. No failure of a mere bailee of goods to notify the mayor or sheriff can be imputed against the owner of the goods as an omission.
    3. The exclusion by the act of 1855 (§ 3,) of a party damnified by a riot from recovering any thing unless he “ shall have used all reasonable diligence to prevent such damage,” does not confine the requisite diligence to exertions during a riot; but the words “ shall have used ” refer to a time anterior to the injury done by the mob, and to previous precautions and care used to prevent destruction by a mob.
    4. Those who seek indemnity against the action of a mob, are at least bound to keep property likely to be an object of attack protected in the same manner in which a man of ordinary prudence would keep it, if he wished to protect it against a sudden attack of rioters.
    6. Under what circumstances a referee’s report, in an action against a municipal corporation to recover the value of property destroyed by a mob, will be set aside for excessiveness of damages.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard November 9, 1867;
    decided February —, 1868.
    This was an action brought against the corporation of the city of New York, by the plaintiff, for damages by reason of injury done to or the destruction of 157 boxes or cases, with their contents, consisting of 3143 carbines, claimed by him to have been injured or destroyed in July, 1863, in consequence of a riot in that city. Such cases and carbines were alleged to have been at the time of such supposed injury or destruction, taken from the fifth story of a building, at the corner of an avenue (Second) and a street (Twenty-second) in such city, used by a gunsmith (Marston) as a work shop or factory, where they had been previously stored. Such carbines had been originally»repaired, altered and packed in such cases in that shop, then removed to a factory opposite (Opdyke’s) and were claimed to have been brought back and piled against the wall, endwise, fourteen or fifteen feet high, nearly the height of the room. Five hundred of them, recently repaired by Marston and sold to the state of New York, lay near the hatchway of such , fifth floor. From fifty to over a hundred workmen ordinarily worked in such shop. The lower part of the building was. occupied by a steam engine and apparatus. The riot commenced on the 13th July, 1863, and was renewed for several days after. Two attacks were made on the 14th of July, 1863, by rioters on the place where such guns were stored. The first commenced between eleven o’clock in the morning and ’noon, and the second between two and three o’clock in the afternoon. A police force of about two hundred men arrived about ten minutes after the first entrance of the rioters, and found them taking arms out of the. building.- All of those arms were retaken by the former, after a conflict in the street. They also obtained all the loose arms on the second and third floors, amounting to seventy-five pieces. On the second occasion, soon after the rioters entered the building, about the same number of policemen, accompanied by a military force arrived, and with difficulty fought their way to the upper part of the building. There they found two or three boxes of carbines, which, after carrying them -down to the sidewalk; they broke open. They also took seventy-five muskets from the rioters outside, making, with those obtained on their first visit, two hundred pieces. They also took some guns from the rioters inside of the building. All the guns taken from the rioters on both occasions, besides those found in the second and third stories by the police on the first occasion, and those found by them at the second in the fifth story, were carried by the police to their head-quarters. Guns were thrown from the windows of the fifth story of the building on the sidewalks of both the street and avenue, by the rioters, on both occasions^ Rut not as many the second time-as the first. They had been throwing out such guns on the second occasion some ten or fifteen minutes, when the police arrived. Most of those thrown 'out were carried away, apparently unbroken. A larger number than those so thrown out were brought down stairs by gangs of from ten to fifteen' rioters, the stair case being very narrow. Those so bringing them down were assailed by a large number outside, to get possession of' the fire arms, and after a struggle they. were generally deprived of them. Such guns were thrown from the windows by the rioters on both occasions, apparently inconsequence of the attack of the police upon them in the building, and the blocking up any exit, from such building, so that the rioters could not get down stairs. When they did come down, with arms in their hands, they Were struck by the policemen with their clubs. They then dropped their weapons and fled, and the crowd outside picked up such guns and escaped with them. The five hundred guns sold to the state, put in order and packed in boxes a day or two before the riot, lay in a very convenient place to be carried off by the rioters.
    Nine thousand guns-, including those in question, (only five thousand of which had not been employed in actual service,) were bought by the plaintiff in 1861 (August) and 1862, from the United States government, and received by him two or three months afterwards. . He paid three dol- ' lars for some, a half dollar more for others, but nothing for the cases. Eight thousand of them were taken to the factory in question, eighteen months or two years before the riot. Improvements having been made, and -all necessary repairs done upon them, they were repacked in cases alleged to contain about twenty each, and were then moved to the factory opposite, in'"December, 1862. Some of the cases were brought back to the first factory shortly after, because there was no room for them in the second. Such improvements consisted principally of rifling the barrels, and cost one dollar a piece for one hundred and sixty-nine of them and thirty cents more for every one of the residue altered. Sixty guns, including two cases, were found immediately after the riot buried in charcoal,’some of which were broken. They were carried to the police head-quarters, but somewhat injured, by their transportation. Fifty or sixty such guns, out of two or three hundred brought to the same place during the riot, were alone in good condition. The barrels of the rest were full of filth. Some had broken stocks and the barrels of others were bent in the middle. Two days afterwards others were brought in, increasing the total to upwards of seven hundred, in a similar condition and with bent bayonets. About a week after such riot, one hundred and fifteen of such guns, known as Hall’s and seven hundred and nine of them, known as Jenk’s carbines, were at such police head-quarters, where they were packed in cases brough from the factory in question. They were examined by a gunsmith (Jephson) and those in order put by him in separate cases from those- out of order. Over sixty had been repaired by replacing the injured or lost parts of one with corresponding sound parts from others. So that four hundred and thirty-three of them were in good working order, two hundred and sixty-four were rusty, eighty-eight new, thirty-two broken and fourteen had broken bayonets. The cost of putting in order those that were rusty would have been $1.25 for each, and of repairing some of such broken ones $1.50, and others a quarter of a dollar more, each.
    The complaint alleged principally that the plaintiff owned the carbines in question with their' cases. That they were destroyed in consequence of the riot in question, without any negligence on the plaintiff’s part, or his previous knowledge of any intention to destroy them. The answer took issue upon the facts stated in the complaint. The issues in the action were tried before a referee, who gave judgment in favor of the plaintiff for $52,911.60. ie referee found in his report as facts: c. The occurrence of the riot.
    . ¿u. A destruction of large amounts of property in the neighborhood of the building in question, by the rioters.
    3d. The storing of one hundred and fifty-seven cases of carbines amounting to three thousand one hundred and forty-three in number, belonging to the plaintiff, in the fifth story of the building in question.
    4th. A notice by the occupant of the factory (Marston) to the city authorities of the' riot, on the 13th of July, 1863.
    5th. The entry of such factory by rioters on the 14th of July, 1863; their smashing the cases containing such carbines, throwing large numbers of the latter from the windows so as to destroy the value by the fall, injuring and “ so far as their value was concerned” destroying two thousand six hundred and forty of them, and one hundred and twenty one cases, and greatly injuring and damaging the residue except forty-nine.
    6th. The expulsion of the rioters from the building and the rescue of the residue of such carbines, most of them damaged, and thirty of their cases, by the police. The transportation by them of all the guns in the hands of the mob and others (including those taken down stairs and not thrown from the windows by the rioters,) with some left in the upper part of such building, to their head-quarters, where others, of such and other guns taken in a damaged condition from the rioters, were subsequently brought.
    7th. The purchase of such guns by the plaintiff from the United States, his improvement and ownership of them, and a good demand for them in July, 1863.
    8th. A presentation of a claim for adjustment by the plaintiff on the 1st of October, 1863, to the city comptroller, and his neglect to pay the same.
    9th. The absence of any negligence on the part of the plaintiff, “ which could have contributed to the destruction of such guns,” and his ignorance of any intention to destroy them.
    ■ 10th. The value of such carbines at $15, and of the. cases containing them $2.50 each, at the time of the riot.
    11th. The injury and “so far as their value was concerned,” the destruction of one hundred and twenty-one cases, and two thousand six hundred and twenty carbines in them, and the great injury and diminution in value of the- remainder of such guns in consequence of such riot. The damage to the plaintiff by such destruction and injury of $42,632.50, amounting with interest thereon to the date of such report ($10,279.15) to $52,911.65. For which sum the referee held as a conclusion of law, from the foregoing facts found by him, that the plaintiff was entitled to judgment against the defendants. From the judgment entered upon the report the defendants appealed and filed exceptions.
    Evidence was given on the trial, of the time of day of the first entry of the rioters into the building in question, the duration of their stay before their expulsion, their numbers and conduct while inside, as well as that of those who remained outside, the quantity of guns thrown from the windows, and the. effect of "their fall upon them, the ultimate fate of them as well as of those brought down stairs, the concealment of some in the building afterwards, the transportation of some discovered therein as well as those taken from the rioters to the police head-quarters,, and the general condition of those carried there. Also as to the number of guns belonging to the plaintiff and stored in such building prior to the riot, the value of those claimed to have been injured or destroyed, and the extent of the injury. Uncontradicted evidence proved the various facts herein before stated.
    The only witness who testified on the trial as tp the time ■ of day of either attack by the rioters upon the factory in question, besides the inspector of police, (Dilks,) who commanded the force who drove them out; the officer, (Burden,) who watched their movements and telegraphed from a police station in sight of them for such force, and an officer, (Clinchy,) who saw the second attack, was Bergman, who fixed the time as “about noon.” Another witness, Schmidt, at some time letioeen noon and 3 o'clock of the day in question, saw persons throwing guns out of the windows, and others bringing them down stairs, but did not state the time of their entry. Bergman was also the only witness, besides such police officers, who fixed the stay of the rioters when he saw them in the building, which he made half an hour before the police came, differing therein from the statement of' Burden, unless it applied to the second assault.
    As to the number of persons present at such attacks, and of those who were actively engaged in the riot, and of those in the building employed in injuring or carrying away guns, the evidence varied; Six witnesses, only, testified on that subject. (Boppoeh, Clinchy, Bilks, S. Marsten, Schanck and Bergman.) Hoppoch saw two or three hundred (mostly boys) go to break open Marston’s factory, and also guns thrown out, but took no note of the time of the last act, because he was so excited, prpfcecting his own affairs, that he could not tell whether it was Monday afternoon or Tuesday morning. He estimated the crowd, including men, women and officers, as being at some time about one thousand. Clinchy, on the second attack, saw a great crowd, (as he termed it',) go up to the building, and get on the fifth floor, of- whom ten or fifteen stood in the entrance. He fixed the numbers of the crowd at that time in the street at about one thousand. S. Marsten thought there were, perhaps, two or three or four hundred engaged' in the riot; there might have been a thousand; but he was unable to fix the day of the week, his memory being bad, and did not state the time of day. Schanck stated the crowd to be about a thousand, at some time, which he did not fix when guns were thrown from the windows. Bergman stated the crowd of persons present, at both attacks, to be about a thousand; the rioters were a great many more than the policemen. Bilks testified that on the second occasion ten thousand persons were collected, but many of them simply looking on. As to the time the rioters were in the building, a police officer, (Burden,) who watched their operations, and telegraphed for the police force, when necessary, testified that the first time they were not in ten minutes when such force arrived. The other officer (Clinchy) testified that the second time they were in from twenty-five minutes to half an hour. Two witnesses (Hoppoch and Bergman) attributed the throwing of guns out of the windows, which they saw, to the attack by the police on the rioters. Three witnesses testified to seeing guns thrown out of the windows on Twenty-second street, on Second avenue, and into the yard of an adjoining building.
    Only five witnesses, (Burden, Schmidt, Bergman, S. Marsten and Bose,) examined, saw the guns thrown from the window. The first (Burden) thought there were fifteen or twenty on the first occasion; not more ; and not as many as fifty. The second (Schmidt) saw about a couple of dozen thrown out on Twenty-second street. The third (Bergman) saw about fifty thrown out on the Second avenue. The fourth (S. Marsten) saw several hundred thrown on the street. The last (Bose) saw a great many lying about on the sidewalk of the street, which had been thrown out, but he could not state how many. Another witness (Boppoch) saw a great many stocks and barrels on the sidewalk in the street, which had been broken by the fall. Several witnesses (Boppoch, Bohn, GUbbs, S. Marsten) gave their opinions, as experts, that the fall of a gun, even less than fifty feet to a pavement, would render it useless and destroy its pecuniary value. One witness (Bohn) testified that the guns which he saw thrown out were cracked; some were bent, and some had the wood broken.

      B. O’ Q-orman, for the appellants.

      J. B. Parsons, for the respondent.
   Robertson, Ch. J.

If there were any means’ of escape from the binding authority of the decision in the court of highest resort in this state in the case of Darlington v. The Mayor, &c. of New York, (31 N. Y. Rep. 164,) a very serious question would arise, to wit, how far the statute of 1855, under which the plaintiff claims, (N. Y. Sess. Laws of 1855, ch. 428,) was repealed, as to the cities of New York and Brooklyn and the whole metropolitan district, by the passage of the metropolitan police act of 1857. (New York Sess. Laws of 1857, ch. 569.) So gross an injustice could hardly he presumed to have! been intended to be perpetrated as to deprive a municipal body, as such, of all power of concerted action in having means on hand to prevent a riot aid yet make it responsible for its consequences, however unexpectedly it occurred. Such an appropriation of property could hardly be anything but confiscation. I do not, however, perceive that the case of Baldwin and another v. The Mayor, &c. of New York,) lately decided in the Court of Appeals, (MS. April term, 1866,) or the opinion delivered in it, however, sound and just, has so disturbed the foundation of- the decision in the first mentioned case, as to the constitutionality of the law of 1855, as to render it still an open question. The right of obtaining a judgment under that statute for damages, is entirely distinct from any question as to the mode of satisfying it. This court would be bound to adhere to its own decisions in-Davidson v. The Mayor, &c. of New York, and Darlington v. the Same, (2 Rob. 230 et seq.,) if such statute he not imperative that such judgment is to be satisfied by an execution in the ordinary way against property held by the city corporation, hut contemplates some other mode of satisfying it. But if the statute be thus imperative, and if all prop: erty -held by the defendants as a corporation is subject to the call of the state for any purpose, whenever and however it chooses to claim or apply it, and such judgment and an execution thereon be the mode of reaching it, as seems to be laid down in the case in the Court of Appeals already cited, (Darlington v. Mayor, &c. ubi sup.) we are bound by that decision, and not at liberty to doubt its correctness.

There is no room under the statute of 1855 for any question of diligence on the part of the city authorities. It is imperative, if the party damnified 'has not been guilty of any want of diligence on his part. Eor could any failure of a bailee, such as Marsten, to notify the mayor or sheriff be imputed as an omission against the plaintiff. Such notification is a mere question of good faith, and there is no evidence before us that he, the plaintiff, knew of any threats of, or expected a riot. Some ‘question might, perhaps, be ■raised on the exclusion by the statute, (p. 801, § 3,) of a party damnified by a riot from recovering any thing unless he “shall have used all reasonable diligence to prevent such damage.” What is meant by this, is not, perhaps, very definite. It evidently does not confine the requisite diligence to exertions during a riot; otherwise, it would have said “ shall use.” But “ shall have used ” clearly refers to the time anterior to some event, (which, of course, is the injury complained of as a consequence of the rio.t,) and was meant, undoubtedly, to refer to previous precautions and care used to prevent destruction by a mob. Those who seek indemnity against the action of a mob, are at least bound to keep property-likely to be the objects of attack, in the position a man of ordinary prudence would keep it if he wished to guard against a mob. It might be doubted, in this case, whether fire arms in a city, during a highly excitable state of the public mind and a civil war, were protected with reasonable diligence by being left in the work shop of a gunsmith, without extra fastenings or barriers. ■ The referee, however, did not pass upon that question, as one of fact, and questions of law involved in it may be postponed, until it is seen whether other facts in the case may not render a decision upon it unnecessary.

¡Nor will it be necessary, in this case, as it stands before us, to consider whether the mere theft of property during a riot sufficiently constitutes an injury or destruction within the meaning of the'statute. The occasion of its passage, as well as its language, would seem to imply, rather injury from the passions of a mob, than abstraction by a band of thieves. The report of the referee in this case, has rendered any question as to the injury superfluous, as it has found that the guns for whose entire value he allows, were rendered worthless in consequence of the riot, and thereby destroyed, and the guns for injury to which he allows' compensation, were damaged to the sum allowed. This leaves the sole question upon it one of fact, whether so many guns were rendered worthless by the rioters, and so many injured to the extent of the damage allowed.

' ¡No spectators .of the conduct of the mob on the occasion in question, examined as witnesses on the trial, saw destroyed, injured or carried away, any thing like the number of guns reported by the referee. The existence of fragments of any thing like as many then destroyed or injured, was not established. And above all, no evidence was given of the quantity of remains of broken boxes which were not carried away, so as to obtain an approximation to their numbers, although it was proved enough to contain the rescued guns and parts bf guns, were found unbroken. The only witnesses who spoke of destruction of the boxes, were the plaintiff, (who, although he did not see them broken, said they were “smashed,”) and Marsten, who spoke of them as being broken up; but neither of them specified any number, and, although the plaintiff so saw them the day after the riot, forty-four cases (brought from the factory, wherein to pack the rescued guns) were found there whole a week after the riot. ¡No mention was made by any witness of unbroken and unopened cases of arms being hurled from the fifth story into the street, which could easily have been done by the rioters, and would have been the most effectual and rapid way of demolishing the boxes and getting at the arms to destroy them, if that were the object. Although, so far as the purpose of the rioters was concerned, it seems to have been rather to procure arms for purposes of plunder, or arming themselves, than merely to destroy a particular kind of property, or injure obnoxious individuals, which generally are the objects of a riot.

The referee’s report was evidently based upon an assumed presence of the number of guns specified by him in the factory in question, and therefore that the .disposition manifested by the rioters to destroy them, their destruction of a considerable number, and the opportunity to destroy all, and the final disappearance from such buildings of all the guns, would together establish their actual destruction by the rioters. Eo doubt Marsten originally packed 8123 carbines belonging to the plaintiff in 157 cases, and sent them in the year 1862 to the opposite factory, where they were deposited; but how long they remained there does not appear. The plaintiff would not state that he ever saw all of such guns in the factory in question, after the removal back. Even Mr. Taylor, who took samples of the guns from some of the cases, could not say that he knew the number of all there, Marsten only knew they were there, by seeing the eases in his factory. Eo one testified that he knew that the contents of the cases remained the same, when they were moved back, as when they went to the Opdyke factory.- Marsten never saw any of the guns after they were first moved, until he repaired the five hundred sold to the state. They remained without any examination for eighteen months before the riot, except to get the samples. The evidence, therefore, was not such as to place it beyond all doubt, that the cases and their contents remained until July, 1863, at the time of the riot, as they were when they were moved to the Opdyke factory. There was ample opportunity, and, of course, the possibility of a removal of some of the guns before the riot, and even before the removal from the Opclyke factory, and whether, with the knowledge of either Marsten or the plaintiff was wholly immaterial.

There was also not enough evidence on the trial, that so many were destroyed or carried off. All that was done by the rioters in the presence of all the witnesses did not establish that 3000 guns were taken out' of the factory in. question by the rioters. Burden, although on the watch all the time, did not see fifty thrown out of the windows on the first attack. ■ Schmidt only saw two dozen, although he saw more carried down stairs, whose possession was struggled for by the mob. Bergman saw only fifty thrown into the avenue, and he was looking at them for half an hour or an hour. He also saw some carried away; but how many he did not state. The father of Mr. Marsten, who appears to have been there all the time, could only say that he saw several hundred in all thrown out. None of the witnesses (if they stated any time at all) were very precise as to the time when the guns, which they saw, were being thrown out. But even if the witnesses saw different arms thrown out, the whole would fall far short of even the number brought to the police head-quarters. There was, undoubtedly, evidence that some of those thrown out were carried away, although there was stronger evidence, that on the first occasion more were brought down the stair case, although very narrow, and carried away, than were thrown out. There was no evidence that those so. brought down and carried away were injured at all; and to that extent, at least, the report of the referee is unsustained.

The improbability, also, of the destruction of so many guns by the means proved to have been used, in the presence of so many witnesses, considering the time, employed and numbers engaged, was very great. Few guns were thrown out of the windows until the police came, and then they were treated so, because the rioters could not carry them away by the stairs. The police force appear to have taken fifteen or twenty minutes, or perhaps half an hour, on each occasion, to expel the rioters, part of whose force was diverted to resisting the entrance of the former. Only ten or fifteen men seem to have been engaged at a time in carrying down guns or throwing them out. It would require fifty to be thrown or carried out every minute in order to exhaust the whole number in an hour. In such case, hundreds would have been seen at a time piled upon or scattered about the street. The fall of such an iron shower would hardly have been described in the tame manner it was by the witnesses. The guns were, as testified, thrown out singly and not by cases, and no witness gave the impression of such a rapid rain of, or escape with, them, as was necessary to get out three thousand guns in an hour, or less. The evidence was scarcely sufficient to warrant a finding that (if any) many over a thousand had beeir taken out in the presence of the witnesses. What took place in their absence was, of course, mere matter of conjecture. The evidence,' also, tended to show that most of those thrown or carried out were rescued and brought to police head-quarters. Making allowance for the time necessary to open the boxes and bring the arms down stairs or throw them but, and the struggles for their possession before the police first arrived, but few could have been carried away. Captain (the police officer) Dilks testified that, after a conflict, they took from the mob in the street all the arms they had, and in both attacks -captured two hundred pieces. More than six hundred more were brought to the police head-quarters, where all the broken ones were repaired that were1 capable of it. The referee, even found that all the guns in the hands of the mob, or others, including those taken down stairs and others in the building, as well as others taken away by the rioters, were destroyed. But there is no justification for' such finding, or that as many were destroyed or injured by the rioters as he has found. The damages found by him were, therefore, excessive.

But this is not all. The plaintiff testified that some (40 or 50) of the arms bought by him of the United States government were badly damaged, and also that some of them had been previously used, in actual service, leaving about five thousand new ones out of the whole nine thousand. Any of those so used, which were defaced, were scraped and oiled over by cabinet makers. He paid nothing for the cases. The highest price paid by him for any one of such guns was $3.50. The highest price paid for improvements on any of them was $1.50. He only brought up the price to $8 a piece by bringing in the cost of trips by him to Washington respecting the cost of purchase and other unknown expenses. After being stored eighteen months, five hundred of them sold to the state of New York were repaired, there being no other carbines procurable, and a confederate army threatening an attack on the north. Out of over eight hundred of such' guns rescued from the rioters, nearly one-ninth were used, much over one-half in good working order, a little short of one-third rusty, and but thirty-two broken. After deducting from the whole amount allowed by the referee ($42,632.50) the value of those reported by him to be rendered entirely worthless, at the sum fixed by him ($15) and of the cases (121) at his valuation ($2.50) there remains about $3000 to be allowed for injury to the residue.

The number of guns left, after deducting those actually destroyed, (2620) would be five hundred and three, and the injurywto each of them by the rioters about $6. This was not sustained by any evidence. But two hundred and ninety-six of those saved were found to need any repairs, of which but thirty-two were broken. The rust was more likely to have been the result of remaining unopened than of being carried out by the rioters. The cost of cleaning and repairing the rusty or broken ones was proved by competent, uncontradicted evidence not to exceed $1.75, which would not amount to one-half of the sum allowed. This, of itself, would also render the damages excessive.

Two dollars and a half was allowed by the referee in this case for each box or case, although the plaintiff had obtained them gratuitously, and $15 for guns for which the latter had only paid $3. The report, therefore, if allowed to stand, would operate as a judicial sale without delivery to the defendants of all the guns owned by the plaintiff, on the hare possibility of their having been injured, at the highest imaginable market price, although the defendants were not in fault for the.occurrence of the riot, having been deprived by the state government' of their police, and by the federal government of their most efficient military force to defend another state. The report niust be set aside for excessiveness of damages, the judgment thereon reversed, the order of reference discharged and a new trial had, with costs to abide the event.