McCaldin v. Parke — 23 N.Y.S. 370

Majority

p. 370

McCALDIN v. PARKE et al.

(Supreme Court, General Term, Second Department.

May 8, 1893.)

Headnote

Wharves—Dangerous Approach.

Defendants chartered plaintiff’s vessel, agreeing to furnish 16 feet of water at their dock for a landing, and the vessel, while drawing 15 feet ef water, and running to the dock “bow on,” struck on some rocks at a point 70 feet distant therefrom. EeM, that the point at which the vessel struck was a part of the approach of the dock, in that an approach must be held to mean that part of the front edge of a dock which a vessel must pass through to reach the same running bow on; and that defendants were liable for the injury to the vessel, resulting in their failure to provide 16 feet of water, as agreed. 21 N. Y. Supp. 277 , reaffirmed.

Appeal from circuit court, Kings county.

Action by James McCaldin against William A. Parke and others for damages for injuries to vessel. Judgment was rendered for plaintiff, and a motion by defendants on the judge’s minutes for a new trial was denied. Defendants appeal.

Affirmed.

Argued before DYKMAJST and PRATT, JJ,

Parsons, Shepard & Ogden, (Edward M. Shepard, of counsel,) for appellants.

Goodrich, Deady & Goodrich, (William W. Goodrich, of counsel,) for respondent.

This is an appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial. The principles of this case were passed upon in a former appeal, and therefore there is nothing to be examined at present except the question whether there are any valid exceptions to the rulings of the court upon the trial. No violation of the principles laid down

p. 371

in the opinion upon the former appeal are pointed out by the appellants, and we find none in the case, and we therefore refrain from discussing anything in the case except questions that were not raised in the former appeal. The exception to the introduction of the bills paid by the plaintiff for repairs was not well taken, as they were merely introductory to evidence of payment, which was put in with the bills. Neither was the exception to evidence that the vessel was properly loaded error. In fact, all the exceptions to the admission of evidence are without merit, the evidence objected to being a necessary part of the plaintiff’s case or proper to meet suggestions and inference made by the defendants. There are many exceptions to the charge of the judge, but we fail to find error prejudicial to the defendants in any one of them. The majority of them related to questions of fact which were properly submitted to the jury under the former general term opinion. If that opinion properly states the law of this case, there is no error. The amount of damage was fixed in the contract of employment. All the questions discussed in the brief of the defendants relate to principles raised upon the former appeal, and require no discussion at this time, as we adopt and adhere to the former opinion, and affirm the present appeal upon it. Judgment affirmed, with costs.