Birch v. City of New York

This action was brought to recover damages for the death of plaintiff’s intestate, which is alleged to have been caused by the negligence of the defendant. The record discloses that on the 26th day of July, 1903, the intestate, a lad of about seventeen years of age, was one of a pleasure party who went for a sail on the tugboat of one Captain Wilson. The party embarked in rowboats at the shore in the vicinity of Ninety-fifth street in the borough of Brooklyn, and proceeded to the tug which was anchored at some distance out in the East river. After a sail of several hours’ duration the party returned to the starting point at about nine o’clock in the evening. At this time it was quite dark and the water had become so rough that the captain deemed it inadvisable to permit his passengers to disembark into rowboats and decided to'run the tug to a pier situate between Second avenue and Ninety-fifth street. After the tug had been made fast at a tiepost plaintiff’s intestate stepped upon the pier,

The plaintiff's case has proceeded upon the theory that the pier in question was a public place owned and controlled by the defendant, and that the failure to keep it in a reasonably safe condition for use by the public was culpable negligence for which the defendant must be held liable. The theory of the defense is that, although this pier was the property of the defendant, it was not a public place and that the defendant owed the plaintiff’s intestate no other or greater duty than that which any private owner of property owes to a mere licensee.

The evidence bearing upon these contentions tends to show that prior to 1895 the premises which embrace the locus in quo had been owned by one Lane. The pier in question had been in existence during Lane’s ownership at least as early as 1889, and probably much longer. The record discloses that prior to 1895 the pier had been used by many persons for swimming and fishing; that several garbage scows had loaded or unloaded there on various occasions, and that the witness Wilson had tied up' his tug there at different times. This pier extended into the river for a distance of about one hundred and eighty feet, and was connected at the shore end with a dock running parallel with the shore for several hundred feet. From this dock, and at a point about midway between Second avenue and 95th street, there was a winding road or pathway about sixteen feet in width to a street called the Shore driveway. There is no evidence that during Lane’s ownership either the pier or pathway had ever been used for public purposes, and such testimony as the record contains tends rather to support the inference that they had always been used as private property.

At the Trial Term, the learned court granted a nonsuit upon the theory that this pier, although owned by a municipality, was not a public place to which the public had been expressly or impliedly invited, and that the defendant was under no greater obligation to those who assumed to use it than an individual owner or occupier would have been to a mere licensee. At the Appellate Division the opinion prevailed

The issue is extremely narrow and not free from doubt, but we are inclined to the view that the court at Trial Term was right and that the judgment upon the nonsuit should be sustained. We think it would be imposing upon municipalities altogether too harsh a rule of liability to hold that private property acquired by them for public purposes must be treated as thrown open to the use of the public from the moment of its acquisition, without regard to the character of the changes or improvements that may be contemplated in fitting it for future public use. This was private property up to the moment that it was acquired by the city. Although it was to be devoted to public use in that it was embraced in the plans for the city’s park system, the precise character of its improvement and the exact nature and extent of its use do not appear to have been definitely determined at the time of the intestate’s death. It is true that eight years had elapsed between the time of its acquisition by the city and the tragic ending of this young man’s life, and that during this interval the pier might have been improved or removed. But these are considerations with which we have no concern in a case of this character, unless we are prepared to hold as a matter pf law that a municipality which acquires property for public purposes is bound either to improve it at once, or to exercise a degree of care in its maintenance before its improvement, beyond that which is chargeable to a private owner of property similarly situated. It is too plain for discussion that, neither individuals nor courts have any right or power to demand or direct how or when public improvements shall be made, except where such right or power are conferred by statute or other legal authority. It seems equally plain to us that there is no valid reason why a municipality should be held to a different rule of liability for its alleged negligence than an

This is not a case where the pier was a part of the highways of the city, or one of its public places, as in Oceanic Steam Nav. Co. v. Compania T. E. ( 134 N. Y. 465 ) ; Delaney v. Penn. R. R. Co. ( 144 N. Y. 718 ), and other similar cases. 27either was it a place which the city permitted to be used as a highway for public travel, as in Saulsbury v. Village of Ithaca ( 94 N. Y. 30 ) or Brusso v. City of Buffalo ( 90 N. Y. 679 ). This was private property, although owned by the city and held for a public purpose, and that private character continued until it was actually devoted to the public use for which it was purchased, unless the city either invited or permitted a use of it that was public in its nature. Swimming and fishing are not, strictly speaking, pier uses at all, and certainly not uses which could convert a private pier into a public one! 27or was the use of the pier for the loading and unloading of contractors’ building materials, under express permission of the park authorities, inconsistent with its private character. 27either were the other occasional and incidental uses to which, according to the evidence it may have been devoted, such as to support the conclusion that it was in any sense a place to which the public had been impliedly or expressly invited.

We think, therefore, that this case falls within the rule succinctly expressed in Thompson on 27egligence (Yol. 1, § 945) as follows: “ The owner or occupier of real property is under no obligation to make it safe, or to keep it in any particular condition for the benefit of trespassers, intruders, mere volunteers, or bare licensees, coming upon it without his invitation, express or implied.” There are many cases which illustrate and support this rule, but we shall only refer to a few. In Larmore v. Crown Point Iron Co. ( 101 N. Y. 393 ) the plaintiff had gone upon the premises of the defendant to apply for work. He had been engaged to commence work on the fol

In Sterger v. Van Sicklen ( 132 N. Y. 499 ) the defendant owned a building with back steps which were in a decayed condition. The plaintiff, a person living in a neighboring house, crossed the intervening back yard through an opening in the fence, and went upon these defective steps where she was injured. This court, in deciding that the plaintiff was not entitled to recover, quoted the rule as laid down by Mr. Pollock in his work on Torts, as follows: “ Persons who by the mere gratuitous permission of owners or occupiers take a short cut across a waste piece of land, or pass over private bridges, or have the run of a building, cannot expect to find the land free from holes or ditches or the bridges to be in safe repair, or the passages and stairs to be commodious and free from dangerous places.”

To the same effect is Walsh v. Fitchburg R. R. Co. ( 145 N. Y. 301 ) where the defendant maintained a turntable in a vacant lot over which the public were accustomed to travel. The plaintiff, a small child, in company with other children, came upon the lot and was injured in playing with the turntable. In expressing the view of this court that the plaintiff was not entitled to recover, Jndge Pecki-iam said: “ The plaintiff was not on the land by invitation of the defendant, nor in its business, but for his own purposes totally disconnected with the defendant’s _ business. He was not a trespasser in the sense of his being unlawfully upon the premises, because the defendant by its course of conduct had impliedly granted a license to the public to use the land for the purpose above mentioned. This license, of course, could at any time have

The order of the Appellate Division should be reversed and the judgment entered upon the nonsuit should be affirmed, with costs in both courts.

(dissenting). I am of the opinion that the Appellate Division properly reversed the judgment of nonsuit and ordered a new trial, for the following reasons:

(L) The defendant had for many years allowed this pier to remain in a dilapidated condition, and for a considerable period of time permitted the existence of what may be regarded as nothing less than a “ trap ” for the unwary in the form of an opening in the floor or deck of the pier two and one-lialf to three feet wide and five to six feet in length, over deep water, into which the deceased fell and was drowned, while passing over the place of a dark night.

(2) There was sufficient evidence to be submitted to the jury, as was pointed out in the opinion of the Appellate Division, as follows : “ It was used constantly and openly by parties fishing and swimming or enjoying pleasure excursions; and it was also used occasionally by contractors in landing materials under permit from the city authorities. The evidence is ample to justify a jury in concluding that a tragedy such as has occurred was reasonably to be expected.”

Cullen, Ch. J., Gray, Haight, Willard Bartlett and Hiscock, JJ., concur with Werner, J.; Edward T. Bartlett, J., reads dissenting memorandum.

Ordered accordingly.