Trowbridge v. Mayor of Albany — 7 Hill & Den. 429

Majority

p. 429

Trowbridge and others vs. The Mayor &c. of the City of Albany.

Headnote

The legal interest in anchorage and wharfage, conferred upon the city of Albany by the charter of Governor Dongan, was not divested by the act of April 5th, 1823, (Sess. L. of ’23, ■p. 128,) authorizing the construction of a basin in the city; and suits for the collection thereof must therefore be brought hi the corporate name of the city.

The sixth section of the above act is not to be so construed as to exempt the owner of a vessel from liability for wharfage on the ground that the dock at which the vessel lay belonged to him; nor, in a suit for such wharfage, can he claim a deduction of the distributive share or interest to which he will be ultimately entitled. Where, in such suit, the defendant offered to show an ordinance of the common council of the city, reciting that the suit was commenced without their knowledge or consent, and instructing the attorney for the corporation to forbid the further use of their name in the prosecution thereof &e.; held, inadmissible.

Held further, that the fact of the corporation having assigned all their interest in the subject matter of the suit before it was commenced, could not be shown as a defence.

p. 430

Whether the defendant is entitled in such ease to any allowance, by way of recoupment, in consequence of the basin having been so much out of repair as to affect the beneficial use of it, quere.

Semble that a defence by way of recoupment is inadmissible unless the party has given notice of it.

On error from the supreme court, where the corporation of the city of Albany sued the present plaintiffs in error, and recovered judgment. For a report of the case in that court, see 5 Hill, 71 et seq. It was argued here by

S. Stevens, for the plaintiffs in error, and

I. Harris, for the defendants in error.

delivered opinions concurring substantially with the view taken of the case by the supreme court, except as to the evidence offered on the part of the defendants by way of recoupment. Senators Lott and Sherman said that if the defendants could claim a deduction, under any circumstances, for not keeping the basin in repair, upon which they expressed no opinion, it was necessary to give notice of the defence. Senator Johnson was of opinion that no notice was necessary, but agreed that the evidence offered was properly rejected, on the ground that the case was not one to which the doctrine of recoupment was applicable.

On the question being put, v Shall this judgment be reversed ?” the members of the court voted as follows:

For affirmance: Senators Bockee, Burnham, Faulkner, Jones, Johnson, Lott, Rhoades, Scott, Sherman, Smith and Wright—11.

For reversal: Senators Hard and Works—2.

Judgment affirmed,