Moody v. Mayor of New York

Headnote

The owners of a pier are liable for injuries sustained by an individual by reason of its defective construction and dangerous condition, notwithstanding the premises are, at the time, in the possession of a tenant who has covenanted to keep the pier in repair, if the defects existed when the owners leased the property to him.

OH the 24th of March, 1861, the plaintiff’s vessel was caught upon the northerly end of the pier at the foot of west Thirtieth street, Hew York, by an obstruction under water, and she thereby became a total loss. The complaint alleged, that her loss was “in consequence of the defective construction and dangerous condition of the said pier,” and that the defendants, “well knowing the same, neglected to properly construct and keep the said pier in repair.” The evidence presents the following facts: That the plaintiff was the owner of the vessel; her loss and value; that her loss was caused “by logs of timber, constituting part of the pier, projecting five or six feet from the north side thereof, near the end of it, and which logs were beneath the surface of the water, only to be seen at low water mark.” George White, a witness for the plaintiff, shows that he was superintendent of wharves during 1861, and that “a block was sunk and let out five or six feet at the north side of the pier at the foot of Thirtieth street, and it was up at low-water mark, and was a permanent obstructionthat the same was known to the common council, to the street department, and the comptroller. The defendants admitted that the wharf in question was constructed by the city. Harvey P. Farrington testified that he had a lease of the pier in question of the corporation, on the 1st of May, 1861. He says, “An allowance was made to me, on account of the obstruction, of $400 a year, to be deducted from the rent.” In May he made complaint to the comptroller that the wharf was not in a condition for vessels' to be at the northerly end for a certain distance, somewhere about one hundred feet; and was told to, and he

did, make a complaint to the street commissioner-. The comptroller allowed him $400 a year until the pier should be fixed, and it was not fixed.

The defendants having rested their case, moved that the complaint be dismissed, upon the following grounds, namely: 1. That the slips, wharves and piers in the city of New York are not highways or public streets, and the defendants are not bound to keep them in repair, and are not liable for damages occasioned by an obstruction beneath the surface of the water in the slip. 2. That the pier having been shown to have been leased by the defendants to Farrington, and in his absolute possession at the time of the accident, the corporation are not liable. 3. That the lessee (Farrington) having covenanted with the corporation, in the lease, to make all necessary repairs during the term of the lease, the corporation is not liable. 4. That the tenant is bound to repair, in the absence of any agreement upon the part of the owner to that effect; and the corporation is therefore not liable for an injury resulting to the plaintiff from a want of repair. The court denied the motion, and the defendants’ counsel excepted. The jury found a verdict for the plaintiff of $500, and thereupon, at the request of the defendants, twenty days were given to prepare a case, and the exceptions to be heard, in the first instance, at the general term.