Trustees of the Freeholders & Commonalty of Brookhaven v. Smith

This action is in trespass, for building a pier upon certain lands under water, in the Great South bay; of which the plaintiff, the town of Brookhaven, is seized in fee, under crown grants made by royal governors in the years 1666, 1686 and 1693. The appellant Smith is the owner of a. piece of upland, bounded on high water mark, by title derived under a crown grant made to William FTicoll in 1697. From this upland a pier, built upon piles, extended for about 150

The jus pri/vatum of the crown, by which the English king was deemed to own the soil of the sea and of navigable rivers, in his own right, rather than as a' sovereign holding it in trust for his people, however applicable to the conditions ' in Great Britain, were totally inapplicable to the situation of the colonists of this country. In Gould on Waters, the author remarks, as to this, that “there is no evidence that the jus privatum * * * was ever asserted in the colony as the right of the Crown, or that it has, until recently, been claimed by the States ; but there is, on the contrary, in my opinion, the strongest evidence that this right has been abandoned to the proprietors of the land from the first settlement of the province and exercised by them to the present day, so as to have become a common right and thus the common law.” (3d ed. sec. 32).

I. may observe, in passing, that in England the common-law rule, which left the riparian owner without ahy remedy, when his right of access was destroyed by public works, has been modified, within recent years. (See Buccleuch v. Metrop. B'd of Works, L. R. [5 Eng. & Ir. App.] 418.)

It is a matter of general observation, of which judicial notice may wisely be taken, that riparian owners everywhere upon the numerous navigable bodies of waters within the territorial limits of this state have made their easement, or right of access, practical and available by the construction of docks, piers, or wharfs, and have done so ..without interference by the state, where superior public rights have not been obstructed. These interests must be very large and if we ^shall hold with the English common-law doctrine, that they are purprestures, or unlawful encroachments upon the proprietary rights of the state, as would follow, if we affirm this judgment, and that they are removable at pleasure, it would result in causing a very grave loss. Such a decision would be

In the early case in this court of Gould v. Hudson River R. R. Co., ( 6 N. Y. 522 ), it was held, upon the authority of Lansing v. Smith, ( 8 Cow. 146 ), that a riparian owner on the Hudson river had no private right, or property, in the waters, or in the shore, between high and low-water mark. In that case the plaintiff sought to recover compensation' from the defendant; which, pursuant to a grant from the legislature, had constructed its railroad along the shore between high and low-water mark and, thereby, had cut off his communication with the river. The principle of that decision, as bearing upon the authority of the legislature to deprive abutting owners upon streets of their easements, came under consideration in the case of Kane v. N. Y. Elev. R. R. Co., (125 N. Y. at p. 184), and it' was observed, with respect to the case, “ that it has been frequently criticised and cannot be regarded as a decisive authority upon the point adjudged therein.” Judge Andrews points out that in Lansing v. Smith, upon which the 'Qould case was decided, the particular question was reserved by the chancellor. In Rumsey v. N. Y. & N. E. R. R. Co., ( 133 N. Y. 79 )', the plaintiffs sought to recover damages to their uplands, sustained through the act of the defendant in cutting off their access to the river by the construction of its roadbed across the water front. The decision was predicated upon the nature and extent of the plaintiffs’ rights as “ ordinary riparian owners on the banks of navigable rivers” and held, with reference to the Qould case, which had been cited by the defendant as a precedent, as in the Kane Case, {supra), that it was not to be followed. The language of the opinion was that it had “ been frequently criticised and questioned and, it is believed, has never been fully acquiesced in by the courts, or the profession, as a decisive authority, or a correct exposition of the law respecting the rights of riparian owners.” The rule, as it had been enunciated by the Supreme Oourt of the United States in the case of Yates v. Milwaukee, (10 Wallace 497), was adopted by this court in Ramsey’s case as

It is urged, however, with respect to these cases that the

The case of People v. Vanderbilt, ( 26 N. Y. 287 and 28 ib. 396), to which reference is made, is not in point; for there the structure erected by the defendant was a crib, Avith the superstructure of a pier, erected beyond the pier line of the city of Hbav York, as established by law, and it Avas held to be a public nuisance. The case of Hedges v. West Shore R. R. Co., ( 150 N. Y. 150 ), was altogether different in its facts. The plaintiff in that case had claimed the right to interfere with the- bed of the Hudson river, by digging a canal outside of the limits of his grant and thus changed the natural situation. That portion of the opinion, Avhich is relied upon as limiting the riparian oivner’s easement, or right of access, must be read in connection Avith what the plaintiff was undertaking in the maintenance of an artificially deep channel in the bed of the stream, from his business plant out into the river. The Rumsey and Saunders Cases, (supra), are

In Shively v. Bowlby, ( 152 U. S. 1 ), to which our attention is, especially, drawn, the question concerned the title to lands below high-water mark upon the Columbia river in the state of Oregon ; which had been acquired by the plaintiffs in error, while Oregon was yet a territory, from the United States and upon which the defendants in error had built a wharf, under deeds to them from the state of the tide lands. The opinion reviews, at great length, the authorities and reaches the conclusion that the title, which, by the common law of England, was in the king to the soil of the sea, or of its arms, below high-water mark, had vested in the several states of the Union, subject to the rights surrendered by the Constitution to the United States. As by the common law, no one could erect a building, or wharf, upon the land below high-water mark, without a license, it followed, as the common-law rule of England upon the subject had become the law of the colonies and states of this country, except so far as

The interpretation, which, as I have shown, has been given by the courts of this state to the riparian owner’s easement, or right of access, is justified in'reason, is opposed to no statute and accords better with the circumstances, under which in this country such rights are ¡possessed. This broader view finds some justification in the peculiar nature of our jiolitical institutions. In our democratic form of government, the residuary sovereignty not granted to the' departments and offices of the government is in the people of the state. The residuary ownership of all property held by the state is in the people of the state and may not the accustomed exercise by property owners of some incidental rights with respect to it, as in the use of the soil of navigable arms of the sea, or rivers,

The right of access is conceded to be a valuable one and, unless the foreshore has been appropriated by the general government to some superior, and lawful, public use, as for example, by grant to a municipality, or for navigation purposes, it is entitled to the protection of the law. It has recognition in the statutory provisions which confer upon the owner of the upland the primary right to a grant of the land under water. It is not objected that these defendants have erected a nuisance, in itself, or in some obstruction to public navigation. If it were that, the exercise of the right would be unreasonable; for such ownership is qualified and is subordinate to the public right of navigation, and must be subject to such rules as the legislature may impose for the protection of the public rights in the navigable waters. The courts of this state have been careful, in all cases, while sustaining the rights of the riparian owner, to declare them subordinate to the exercise of the power of the legislature, or of the Congress, for the improvement of navigation, or for the regulation of commerce. They must yield to the demands of public commercial necessities. This structure is conceded to be proper enough for the purpose intended by the defendants and it is no appropriation of the land under water; other than as the soil is used to hold the piles. The defendants have, simply, made their right of access practical. It is a general rule that when the use of a thing is granted, everything is granted by which the grantee may enjoy such use. By analogy, we may reason .that the riparian owner’s right of access to the navigable waters in front of his upland comprehends, necessarily and justly, whatever is needed for the complete and innocent enjoyment of that right.

So I conclude that the question is not what was the common-law doctrine concerning a riparian owner’s right in the foreshore, or tideway; but what that right has been construed to mean by the courts of this state. The town of Brookhaven

For these reasons, I advise that the judgment below be reversed and, as the controversy does not depend upon the' facts, that the complaint be dismissed; with costs to the appellants in all the courts.

(dissenting). I am unable to concur in the • conclusions reached by a majority of my associates.

The facts involved are simple and not in dispute. The plaintiff, the town of Brookhaven, obtained title in fee to the shore in question below high-water mark, under three grants made in behalf of the king, and dated respectively 1666, 1686 and 1693. The respondent Post is its lessee.

Four years after the last grant above mentioned, one of a similar nature was made to William Eicholl under which the' appellant Smith has derived title to a small piece of land abutting on the shore at high-tide mark, and the other defendants respectively to other small parcels.

These royal grants are amongst those which were subsequently confirmed by our Constitution (Art. 1, sec. 17), and are entitled to full recognition and credit. They are the foundations upon which must rest the rights of the respective parties.

From the abutting upland above mentioned, appellants have built a dock out over the lands granted to the town into the water for a distance of about 150 feet. We are justified in construing the stipulation of the parties to be that this dock is not objectionable in its form or size if there was a right to build one at all, and this action, therefore, cannot be maintained on the theory that it is such an obstruction to the rights of the public as to be a nuisance per se.

Those general principles by which the rights of the parties thus are to be measured, of course, are to be found embodied in the common law as it existed in England at and prior to the dates of the grants and as it had been by the colonists brought to and adopted in this country. (Const, art. 1, sect. 16.) For it is well settled that such grants were in the nature of contracts which are to be construed and interpreted in the light of the law as it prevailed when they were made. (Fletcher v. Pech, 6 Cranch, 87 , 137 ; Danolds v. State of N. Y., 89 N. Y. 36 , 45 ; People ex rel. Howell v. Jessup, 160 N. Y. 249 , 261; Von Hoffman v. City of Quincy, 4 Wall. 535 ; Pritchard v. Horton, 106 U. S. 124 , 132-3 ; Barnitz v. Beverly, 163 U. S. 118 , 125.)

Therefore, this interesting controversy seems to narrow to the question what, under the common law, were the riparian rights of an upland owner abutting upon tide water as against the pro

This problem must necessarily be determined by reference to those authorities which have interpreted and defined such law, and which are either controlling upon ns or proper guides for us in our examination. Their declarations must be accepted as establishing the fact that this ancient law did or did not permit the privilege here claimed by appellants, and their review at considerable length becomes essential even though it may seem tedious.

Before proceeding to a consideration of the authorities, it may be well to call to mind some of the general features and principles which characterize the ownership of the soil under navigable waters, and which may be of assistance in fully appreciating what is said in some of the decisions.

By the common law, both the title and the dominion of the sea and all rivers and arms of the sea where the tide ebbed and flowed aiid of all the lands below high-water mark within the jurisdiction of the crown of England were in the king, but lie held this title and dominion in a two-fold capacity. He had dominion thereof as the representative of the nation and for the public benefit to be, derived from the use and enjoyment of navigable waters. This was the jus publicum which he could not personally or by grant impair or cut off. The jus privat am, which the king enjoyed through title to such lands as of waste and unoccupied lands belonged to him as sovereign and proprietor. It was a property right and the title and right which he enjoyed in this capacity he could by virtue of his proprietary interest convey to a private individual, but always subject to the rights and privileges of the people at large comprehended within the definition jus publicum. (Shively v. Bowlby, 152 U. S.11; People v. N. Y. & S. I. Ferry Co., 68 N. Y. 71 ; Martin. v. Waddell, 16 Peters, 367, 411-13 ; People v. Vanderbilt, 26 N. Y. 287 , 292-3.)

Proceeding to the authorities, I shall refer first to some of the English ones which have been called to our attention and which seem to establish that in England the common law forbade the owner of the upland to construct a pier or wharf over the soil below high-water mark.

Johnson v. Barrett, decided in 1617, is reported in Aleyn’s 3 King’s Bench Reports, at page 10, as follows: “ In an action of trespass for carrying away soil and timber, &c. Upon trial at the bar, the question arose upon a key that was

Lord Hale died in 1676. His treatise, De Portibus Maris, is a leading authority and is found in Hargreave’s Law Tracts, and at page 85, in a list of nuisances, contains the following: “ The straightening of the port by building too far into the water, where ships or vessels might have formerly ridden; for it is to be observed that nuisance or not nuisance in such case is a question of fact. It is not, therefore, every building below the high-water mark, nor every building below the low-water mark, is ipso facto in law a nuisance. For that would destroy all the keys that are in all the ports of England. * * * Indeed, where the soil is the King’s the building below the high-water mark is a purpresture, an encroachment, and intrusion upon the King’s soil, which he may either demolish or seize or arent at his pleasure; but it is not ipso facto a common nuisance, unless, indeed, it be a damage to the port and navigation.”

In Attorney-General v. Richards (2 Anstr. [1795] 603), which was an action to abate a wharf, the court held that it y 7 was immaterial whether or not the wharf was an actual nuisance, it was a purpresture and could, therefore, be abated. (See, also, Attorney-General v. Philpot, nowhere reported, but. cited in last above case.)

Parmeter v. Gibbs (10 Price, 412) was decided in the House of Lords in 1822. The riparian owner had built a wharf between high and low-water mark and the crown brought a bill to abate and remove it. Two points were raised by the defense: First, that the defendant had title to the land under a royal grant. Second, that the erections were

Gould on Waters (Sec. 167) states the common law of England as not securing to the owner of abutting lands the right to extend wharves beyond high-water mark of tide waters.

When we pass to the consideration of decisions in the different courts of the United States, it is, of course, to be borne in mind that the rule of common law as laid down in England has been affected in various states by legislation or usage, and that, therefore, a decision relating to this right in one state would not necessarily be an authority upon the same question arising in a different one. When, however, we find a decision based upon the common law as it existed prior to April 19, 1775, as of which date we incorporated the principles of that law into the law of this state, or an opinion pertinently discussing and defining the common law as it then existed, such decision or discussion becomes a -proper authority by which to shape our course in the present case. I think that the clear weight of such authorities is against the right of the upland owner to wharf out over the tideway and adjoining soil. It is not practicable to review all of the judicial literature bearing upon this subject, and I shall refer only to a few of the utterances of courts outside of this state which unquestionably are entitled to much respect.

In Weber v. Harbor Commissioners (I8 Wall. 57) the plaintiff filed a bill against the defendants to compel them to abate and remove certain erections made by them on the water front of San Francisco, which he alleged interfered with a wharf rightfully put there by him. His rights depended upon certain acts of the legislature of the state giving to the city, of San Francisco rights in portions of the lands covered by the tide waters of the bay of San Francisco in front of the city, and a subsequent grant by the city to Weber’s predecessors of its title to certain lots. The discussion involved a consideration of what plaintiff’s rights would have been in

The case of Shively v. Bowlby (152 U. S. [1893] 1) contains a most elaborate and painstaking discussion of the law upon this question, reviewing with much detail the decisions of the different states. That case came up from Oregon and the direct question involved was whether a donation land claim bounded by the Columbia river, acquired under an act of Congress while Oregon was a territory, passed any title or right in lands below high-water mark as against a subsequent grant from the state of Oregon pursuant to its statutes; • The case involved a consideration of the common*,law upon the question here under discussion as it existed in England and was adopted in this country, and the opinion affirmed each of the following propositions:

1. In England, from the time of Lord Hale, it has been treated as settled that the title in the soil of the sea, or arms of the sea, below ordinary high-water mark, is in the king, except so far as an individual or corporation has acquired rights in - it by express grant or by prescription or usage. It is equally

2. The common law of England upon this subject, at the time of the emigration of our ancestors, is the law of this country, except so far as it has been modified by the charters, constitutions, statutes or usages of the several colonies and states, or by the Constitution and laws of the United States.

3. The new states admitted into the Union sin'ce the adoption of the Constitution have the same rights as the original states in the tide waters and in the land below the high-water mark within their respective jurisdictions.

4. The jurisprudence of "Oregon is based on the common law.

And, finally, as a general deduction that in a state like Oregon where there was no special legislation or usage, the common-law rule enunciated would govern the rights of the upland proprietor and he would not be entitled to wharf out.

In Cobb v. Commissioners of Lincoln Park ( 202 Ill. 427 ) there were under discussion the rights of an upland owner bordering on Lake Michigan, the question being whether such upland owner possessed an easement permitting him to build wharves over the submerged lands in front of him in order to reach the navigable water. The court, in a carefully prepared opinion, assumed the rights of a riparian owner upon the lake to be the same as those of such an owner fronting upon the sea. It decided that the principles of common law which were adopted in that state as they existed’ prior to March 24, 1606, were still applicable, there being no statute or usage which had modified such law, and then further that “ A riparian owner had no right to build any structure on the sub

In Connecticut the well-recognized right of the upland owner to erect wharves is predicated upon general, immemorial usage rather than upon the common law. (East Haven v. Hemingway, 1 Conn. 186 , 203.)

In reviewing the decisions of our own state, I shall refer first to those which are in harmony with the English and American cases already cited, and then I shall attempt to analyze both the Newr York cases and some elsewhere wherein something has been said which the appellants regard as sustaining their position.

People v. Vanderbilt ( 26 N. Y. 287 ) was brought to restrain the defendant from proceeding to the erection of a pier extending into the North river and to compel the removal of the part already built as a public nuisance. Upon the trial, the defendant’s counsel offered to prove that the proposed pier and crib were not and would not be when completed a nuisance or interference in any manner with the navigation of the river. The trial court rejected this evidence, holding that if the pier were unauthorized by law, it ■would b&per se a nuisance. Upon appeal the court discussed the rejection of this evidence, saying: “ The right of property in the soil or bed of a navigable river or arm of the sea, and the right to use the waters for the purposes of navigation, are entirely separate and distinct. The first of these rights is by the common law vested prima facie in the sovereign power. * * * The second is a right common to the whole people, and it is vested in the public at large. A purpresture is an invasion of the right of property in the soil, while the same remains in the king or the people. A nuisance is an injury to theyWpubliov/m, or common right of the public to navigate the waters. * * * If the injury com

Sage v. Mayor, etc., of New Work ( 154 N. Y. 61 ) involved the question of riparian rights possessed by an owner of land bounded on the Harlem river, which is a navigable stream where the tide ebbs and flows. Judge Vann, manifestly after great research, discusses most thoroughly the origin and extent of these rights, and it is significant that after doing this in defining them he simply enumerates the right of access to the navigable part of the .river in front of the riparian lands for the purpose of loading boats, drawing nets and the like, and does not anywhere include as one of the privileges or easements held by the riparian owner, the right to wharf out into the stream.

Hedges v. West Shore R. R. Co. ( 150 N. Y. 150 ) involved a controversy between a riparian owner upon the Hudson river and the defendant, which had built its road ujiou a structure of open piling below high-water mark in front of his premises under a privilege acquired from the state, leaving, however, to the riparian owner suitable and reasonable means of access to the channel. The extent of the rights of such a riparian owner were necessarily involved and fully discussed, and it is again significant that there is not included amongst them, but rather seems to be excluded from them, the right to wharf- out into the stream, which right would almost, necessarily have been interfered with by the railroad structure in question. The substance of the opinion upon this subject is fairly expressed by that portion of the head note

It is also to be noted that the opinion in this case was written by the same judge whose expressions in the Rumsey and Saunders cases, hereafter to be referred to, are cited by the appellants as authority for their contention in favor of such right to erect a wharf.

Matter of City of New York ( 168 N. Y. 134 ) is the so-called “ Speedway ” case, where the city, by constructing a roadway along the Harlem river, had destroyed the riparian rights of the owners of uplands abutting on that river. The case naturally called for a consideration of what those rights were, and Judge Werner, in a most careful and elaborate opinion, defines them (page 143) as follows: “ The owner of uplands abutting upon a navigable river where the tide flows and ebbs, takes title only to high-water mark. While he does not own the tideway, or the lands under water beyond the same, he has the easement of passage and the transportation of merchandise, to and fro, between the navigable water and his land; to fish and draw nets; to land boats and to load and unload the same.” There is no suggestion of the right to construct a pier or wharf.

The cases which are especially relied upon by the appellants as sustaining their position directly or indirectly rest upon the ease of Yates v. Milwaukee ( 10 Wall. 497 ). -Either that decision or some decision expressly based upon it furnishes the only important authority for the doctrine which they invoke, and I shall, therefore, consider it first. It was said in that case: “ But whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf or pier for his own use or for.

Under these circumstances the decision as purporting to define the right of an upland owner, at least upon tide water, to build a pier into the navigable water, has been in effect comprehensively overruled by cases already referred to at length. (Shively v. Bowlby, 152 U. S. 1 , 36, 40; Weber v. Harbor Commissioners, 18 Wall. 57 , 65.)

And in the Sage case' (page 78) Judge Vann very pertinently says : “In Tates v. Milwaukee ( 10 Wall. 497 ) much ivas said that favors the theory of the plaintiff, but all that was decided is that a wharf built by a riparian owner on the bank of a navigable river in the State of Wisconsin under statutory permit cannot he declared a nuisance without a judicial trial.”

The case of Ill. Cent. R. R. Co. ,v. Illinois ( 146 U. S. 387 ), which also is cited as an authority in some of the New York cases hereafter to be referred to, requires very little consideration upon the point here involved. What was held in that case was simply that the railroad company, under express authority of the law, having constructed its tracks along the shore of Lake Michigan in such a manner as in no respect to interfere with any useful freedom of the lake for commerce, could not be regarded as having encroached upon

Before passing to the analysis of other Mew York cases, it is proper to recall that in 1852, in Gould v. Hudson River R. R. Co. ( 6 N. Y. 522 ) in substance it liad been held that the owner of lands on the Hudson river had no property in the shore between high and low-water marks, and, therefore, was not entitled to compensation when the same was taken for the construction of a railroad in such a manner as to shut him off from all convenient access to the water.

This doctrine had been doubted and criticised in various decisions 'before the decision of Rumsey v. N. Y. & N. E. R. R. Co. ( 133 N. Y. 79 ), and the court in that latter case was fairly called upon to decide whether it would or would not follow the GovZd case, for practically the same question was •presented in both. The important question involved was the general one, whether an upland owner had any easements and privileges for the destruction of which by the railroad company he was entitled to recover damages. The details 'of those rights, if any, were not specially in controversy or under consideration. Mo question of the right to construct a pier into the river was presented except as it might be incidental to and embraced within the general subject.

.The court repudiated the doctrine of the Gould case, holding that the upland owner did have rights and easements, and then the judge writing the opinion by way of illustration quoted the remarks of Mr. Justice Miller, in the case of Yates v. Milwaukee, already referred to. There was no other statement whatever in the opinion that an upland owner had a right to wharf out into the river, but upon the contrary, in summing up his conclusions, the judge who wrote said : “ It must now, we think, be regarded as the law in this state that an owner of land on a public river is entitled to such damages as he may have sustained against a railroad company that constructs its road across his water front and deprives him of access to the navigable part of the stream.”

The case of Saunders v. N. Y. C. & H. R. R. R. Co.

Under those circumstances it is true that the opinion, being written by the same judge wdio had written in the Rwmsey case, did state that such rights embraced the right to make a landing wharf or pier for the use of the upland owner or of the public. This statement however, was expressly based upon the proposition that such right had been affirmed in the Rumsey case and reaffirmed in the Illinois Central Railroad case. There was nothing to suggest the query whether this right to construct a pier was really included in the privileges of the abutting owner, but what was written was but 'a general definition of a class of rights which, by reference to the authorities cited, was assumed to include the wdiarfing privilege.

The question in Thousand Island Steamboat Co. v. Visger ( 179 N. Y. 206 ) was whether a riparian owner upon the St. Lawrence river, owning a dock erected upon land granted by the people of the state of blew York for the purpose of promoting the commerce of the state and for no other object or purpose, had a right to the exclusive use of said dock, or whether it was open to the use of all who were engaged in promoting the purposes of the grant, namely, the commerce of the state. That was the precise question involved, and there was none about the right of the riparian owners to maintain their dock in the river. It is true that the opinion, speaking of the fact that the owners or their predecessors had originally built the dock before the grant,.by the state,

Thus we find that all of the expressions in these cases tending to support appellants’ proposition are rather by way of illustration and amplification of what was essentially involved than otherwise, and moreover that directly or indirectly they are based upon the Yates case which, upon this point, can no longer be regarded as authoritative.

Some other cases have been called to our attention in the Apj)ellate Division and at Special and Trial Term, where something has been said affirming the right to build a pier. Whatever was said upon this point was based especially upon the Yates case or upon one of the blew York cases based upon that case, and with the exception possibly of the Mould case, what was said was dictum or part of some general statement of the privileges .of a riparian owner and with nothing to suggest the specific question whether the wliarfing right was really one of those privileges. -

In the case of People v. Mould ( 37 App. Div. 35 ) it was held, by a divided court, that the state could not compel a riparian owner on the Hudson river to remove a wharf erected by him without having obtained a grant from the state in the shoal waters in front of his uplands and reaching the navigable part of the stream, on the ground simply that it was a pur

"What has been said sufficiently indicates my opinion that the weight of authority sustains the proposition urged by the plaintiffs that under the common law as it prevailed in England and as we adopted and have recognized it in this country, at the time the grants were made to the parties and their predecessors, an upland owner did not have the right to build a wharf over the land below high-water mark into the water, and that in this state the common law has not been changed by statute or usage.

Therefore the judgment should he affirmed, with costs.

Cullen, Ch. J., O’Brien and Haight, JJ., concur with Gray, J.; Vann and Werner, JJ., concur with Hiscock, J.

Judgment reversed, etc.