People v. Macy — 29 N.Y. Sup. Ct. 577

Majority

p. 577

THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. WILLIAM H. MACY and WARREN ROSEVELT, Appellants.

Headnote

Chapter 249 of 1875 — the license required by it, must be in writing.

Section 1 of chapter 249 of 1875 provides that it shall be lawful forthe owner or lessee of a pier or bulkhead in the city of New York to erect and maintain sheds upon it, “provided they shall have obtained from the department of docks, in said city, -a license or authority to erect or maintain the same, and subject to the conditions and restrictions contained in such license or authority.”

Meld, that the license or authority required by the act must be in writing.

Appeal from an order made at Special Term, continuing a temporary injunction granted in this action.

The action was brought to restrain the defendants from erecting n shed upon Pier No. 45, in the East River. The defendants •claimed that they had an oral permit from the department of docks ■to erect the same.

Section 1 of chapter 249 of 1875 provides, “ Whenever any person, company or corporation, engaged in the business of steam transportation, shall be the owner or lessee of any pier or bulkhead in the city of New York, and shall use and employ the same for 'the purpose of regularly receiving and ' discharging cargo thereat, it shall be lawful-for such owner or for such lessee, with the consent of the lessor, to erect and maintain upon such pier or bulkhead sheds for the protection of property so received or discharged; provided they shall have obtained from the department of docks, in said city, a license or authority to erect or maintain the same, •and subject .to the conditions and restrictions. contained, in such license or authority. ...”

Willard Bartlett, for the appellants. .

The oral license was sufficient, and the defendants,, by obtaining it, have fully complied with the requirements of the law in that respect. (Morgam, v. United States, 14 Ct. of Cl., 319; 1 Washburn on Real Property, 543; Cooley on Torts, 307, note, and cases there cited ; 3 Kent Comm.,

p. 578

452; Selclm v. Del. <& Hud. Ocmal Co., 29 N. Y., on p. 639; Duce v. Carley, 24 Wend., 453 ; Owen v. Field, 12 Allen, 457 ; Rericlc v. Kern, 14 Serg. & It., 267; Freema/n v. Headley, 33 N. J. L., 253 ; Druse v. Wheeler, 26' Mich., 189; Hall v. JBoyd, 14 Ga., 1 ; Hodgson v. Jeffries, 52 Ind., 334 .) An oral license as well as one in writing may involve conditions to be performed by the licensee. {Russell v. Hubbard, 59 111., 335 ;. McLarney v. PetUgrew, 3 E. D. Smith, 111.)

W. W. ■ Goodrich, for the respondent.

There can be no doubt that the license referred to in the act (L. 1875, ch. 249, § 1) is a written license. The legislature could not possibly have intendéd that sucli an important fact should be left to mere recollection. And how could the department of docks grant an oral license ? — a'license embodied in no written resolution and not' even entered upon the minutes. It might as well be said that the aldermen, as a board, could grant an oral permit. It would be strange, indeed, were such a question of fact to depend for its solution upon a conflict of evidence between the board and the alleged grantee. Besides, the wordssubject to the conditions and restrictions contained in such license or authority ” plainly import a writing. Such writing would seem to be as necessary to the protection of the licensee as to the orderly administration of the. affairs of the department.

The order should be affirmed, with $10 costs, and disbursements*

Present — Davis, P. J., Brady and Barrett, NT.

Order affirmed, with $10 costs, and disbursements.