Bedell v. Kirk — 44 N.Y. St. Rep. 483

Majority

p. 483

Henry Bedell, Resp’t, v. Benjamin C. Kirk, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

JETegligen ce—Removal op anchor op vessel.

Defendant moved the anchor of a sloop to enable his vessel to pass, and the sloop was cast ashore and injured. In an action for such injuries the evidence as to whether such removal was necessary to enable defendant’s vessel to pass, or whether it was a useless interference, was conflicting, and the court charged that defendant had the right to remove the anchor if it interfered with navigation. Held, that a verdict in plaintiff’s favor would not be disturbed.

Appeal from judgment entered upon verdict in favor of plaintiff, and from order denying motion for a new trial.

The complaint alleges plaintiff was the owner and in possession -of an oyster sloop known as the “ Hadley," which he safely and securely moored and anchored in the waters of Hempstead harbor. That on or about the 15th day of October, 1890, the defendant personally and with his agents, etc., unlawfully and without. plaintiff’s knowledge or consent, entered upon the sloop and •shifted its anchor and moorings, and having so shifted the same, failed and neglected to place the same in their original position that would make said sloop safe and secure, but on the contrary so placed said anchor and moorings in an unsafe and insecure position, so that in a storm, which followed shortly after, the anchor and moorings were so shifted on the sloop that it was thrown or -drifted on the beach and was injured, to the - plaintiff’s damage $1,000.

The answer denies the ownership of plaintiff in the sloop. The answer further alleges that the anchor of the sloop was in a narrow channel way in the waters of Hempstead harbor, and obstructed the free passage of defendant’s boat through said channel way, and for the purpose of preventing injury and damage to his boat, defendant moved the said anchor to another safe and secure position so as to allow safe and secure passage to his boat through the channel aforesaid. That after so placing the anchor defendant went upon the said sloop and hauled in the slack of the rope attached to the anchor, and fastened said rope in a safe and secure manner. Further, expressly denies that at the time of shifting anchor that the sloop was safely and securely moored and anchored, as alleged in the complaint. Further, expressly denies Shat he unlawfully entered upon said sloop, and denies that he

p. 484

neglected to place said anchor in a place or position that would make said sloop safe and secure, and denies that he so placed said anchor moorings in an unsafe and insecure position, so that in a storm which followed said anchor and moorings were so shifted that the sloop was thrown or drifted upon the beach, and denies that plaintiff sustained damage.

Henry Hoyt, for app’lt; George B. Stoddart, for resp’t

This is an action for the recovery of damages for injuries to a sloop caused by the improper interference of the defendant.

The vessel was laid up in a slip in Hempstead Harbor and there was an anchor out to hold her in position, and the defendant raised the anchor and moved it in towards the vessel, and the claim of the plaintiff is that he changed the anchor in a careless- and improper manner so as to leave the vessel less secure and in consequence of such negligence she was affected and injured and damaged.

The testimony on the part of the plaintiff tended to show a useless and careless interference with the vessel, which resulted in her injury, while the testimony on the part of the defendant, tended to show that he desired to pass through the narrow channel where the anchor lay, with his vessel, that the anchor rendered the navigation dangerous, and he removed the same to enable his-vessel to pass through in safety and that he removed the same to enable him to take his vessel through without injury and made-the removal in a careful manner.

The trial judge charged that the defendant had the right to remove the anchor if it interfered with navigation, and submitted the question of negligence to the jury.

There was some question about the interest of the plaintiff im the vessel, and that was also left to the jury.

So it was, therefore, that sharp questions of fact were presented, to be determined only by the jury.

The verdict was in favor of the plaintiff which signifies that all the facts were found in his favor and so ends the case.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.