Majority
p. 390Coddington v. White & Moneypenny. (Before Duer, Bosworth, and Emmet, J.J.) October 26. November 19, 1853.
Headnote
The plaintiff was the owner of a quantity of pig-iron, lying on Pier 3?, North River, which the defendants—one as the superintendent of public streets, the other as a dockmaster—gave notice, unless removed on or before the 3d of September then instant, would be taken to the public yard, and there disposed ' of, as the ordinances of the corporation direct.On the morning, and early in the afternoon of the 8d September, the defendants caused the iron to be taken to the public yard, and the plaintiff was compelled to pay a considerable sum for charges and expenses, as the condition of its restoration. Had not the iron been taken to the public yard, it would have \ 'been removed on the same day by a person to whom the plaintiff had sold it.
Held, that the notice, by its fair construction, gave^to the plaintiff, as owner of the iron, the whole of the 3d of September, to make the removal that was ordered; and that the defendants, by taking it to the public yard, at the time and in the manner they did, rendered themselves liable to him as trespassers.
Held, also, that the defendants, as public officers, were bound to act in conformity to the city ordinances, and to the terms of the notice; and could not defend themselves upon the ground, that, as private citizens, they had a right to remove the iron, as a nuisance.
Motion, on. the part of the defendant, for a new trial, upon a case and exceptions. ,
The action was brought to recover damages for the wrongful and malicious taking and detention by the defendants, of certain personal property belonging to the plaintiff.
p. 391
The complaint charged that the defendants, on or about the 2d and 3d days of September, 1850, wrongfully took and carried away 965 tons of pig-iron belonging to the plaintiff, and that the plaintiff was obliged to pay, and did pay, the sum of $168, to obtain the possession and return of the iron from the defendants, and the further sum of $75, for the re-cartage and re-weighing of the iron; and that he had sustained other losses and damages in getting back the iron, amounting in the whole to $500, for which sum judgment was demanded.
The defendants put in the following answer.
The defendants, in answer to the complaint of the plaintiffs in the above entitled action, deny all and singular the allegations and averments in said complaint contained, otherwise than is hereinafter set forth.
And these defendants aver that, by an ordinance of the mayor, aldermen, and commonalty of the city of New York, it is made the duty of the Superintendent of Streets, and he is thereby authorized to order any article or thing whatever, which may encumber or obstruct a street, wharf, or pier in said city, to be removed to the yard occupied by the Superintendent of Public Buildings, or other suitable place. And these defendants aver, that, in conformity with the ordinances of said city, this defendant, White, was appointed Superintendent of Streets in said city, which said office he was holding at and before the time of the alleged taking and detention charged in said complaint: that in the discharge of the duties of his said office, and in conformity with the ordinances aforesaid, he did order said iron to be removed from said pier; and, thereupon, in the failure of the owner thereof to remove the same within the time required by said ordinance, the defendants did remove the same to the public yard, belonging to the mayor, aldermen, and commonalty of the city of New York, situate in Jay street, in said city, as they were in duty bound; this defendant, Moneypenny, acting therein, under the directions of said defendant, White. And these defendants aver, that, after said iron was removed, as aforesaid, the same was delivered to said plaintiff, upon the payment by said plaintiff of the necessary expenses and charges, as is provided by the ordinances aforesaid; and these defendants further aver, that they
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have proceeded herein, in all respects, according to law and. the ordinances aforesaid.
And these defendants further aver, that, on or about the first day’ of September last, a great quantity of iron was deposited upon the pier, number 37, North Eiver, in the city of New York, said pier being a public highway. That the said iron was permitted by the owner thereof, to remain on said pier for a long space of time, encumbering said pier, and obstructing the passage way on said pier, where vessels are constantly loading and unloading, and where carts are constantly passing and re-passing, and so hindered those who had business with said carts, and vessels, and the public way, that the said iron, placed as aforesaid, became a common nuisance, and it became the right and duty of said defendants to abate said nuisance, and they did thereupon remove said iron to a safe, suitable, and convenient place.
And these defendants aver, that the acts hereinbefore recited, are the same complained of by said plaintiff in said complaint.
The cause was tried before the Chief Justice and a jury, on the 28th April, 1853. The following were the proceedings on the trial.
George B. Benjamm was called as a witness for the plaintiff, who, being sworn, testified:
That he is a forwarding merchant; that he bought a quantity of iron, lying on pier No. 37, North Eiver, of the plaintiff, on the 3d of September, 1852; that he went up to get the iron about U p.m. that day, and had boats sent around there to take it away; that he found ten or fifteen tons left on the pier, and carts loading to cart it away; witness made inquiries of Money-penny, and asked him if that was Mr. Coddington’s iron; at first he made no answer; defendant, Moneypenny, was there, keeping account of the iron carted away; witness told him he had come to take it away; defendant answered that he was too late, that he was carting it to the corporation yard, that the greater part, some 50 or 60 loads, had already gone.
This was about 2 p.m. • then I saw a notice on a post.
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(Counsel produces a notice, which witness says is the same he saw.) The notice is read in evidence as follows:—
“ Notice.
“Notice is hereby given to the owner or owners of this pig Non, at present encumbering pier 37, North River, foot of Beach street, that, unless the same be removed therefrom, on or before the 3rd instant, it will be taken to the public yard, and there disposed of as the ordinances of the corporation of the city direct.
“ By order, “ Geo. White.
“ Thomas Mokeypesttv,
“ Dockmaster, 5th District.
“ Superintendent of the Streets’ Office,)
“ New York, September 2d, 1852.” J
Being cross-examined, witness says:
I purchased the iron about 11 o’clock, on the 3d September; it was on a credit of six months; I took an order for the delivery of the iron; it was a memorandum of sale of the iron; I went to take possession of the iron; plaintiff gave me immediate authority to take the iron; the iron was then in the custody of Moneypenny.
Direct examination resumed—
Did you consummate the bargain by a transfer of the iron ? (Defendant’s counsel objected. Objection overruled. Exception taken.)
I did not; the iron was never delivered to me.
Dcmiel Ostrcvnder was called as a witness for plaintiff, who, being sworn, testified:
That he was in September last a clerk of the plaintiff; that he made a demand of defendant, White, for a quantity of iron, at the request of plaintiff, at White’s office; I showed him this notice (the above notice was produced) and told him that I wished to get from him an order to remove the iron from the corporation yard; White said he had a bill of charges against the owner; I took the bill to plaintiff, who told me to demand the iron, and if I could not get the iron otherwise, to pay under
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protest; I paid White the bill under protest, amounting to $168.85; the bills were proved, and read in evidence.
“ Office of Superintendent of Streets,
New York, September 7th, 1852. Lot of Pig Iron from ship 6 Augusta,’
To Geobge White,
Superintendent of Streets, Dr. Sept. 4. Cartage 190 loads, at 55 cents, from foot of Beach street, Horth Biver, to Corporation Yald,
Jane street, -------- $104 50
Labor piling in yard,......18 75
Storage, four days, at 6 cents per load, - - 45 60
Eeceived payment,
$168 85
Robert G. Walmsley,
For Geobge White, Superintendent of Streets.”
“Lot, Ho. 14. “New York, September'7th, 1852.
“Received from T. B. Cunningham (Coddington), under protest, one hundred and sixty-eight TW dollars, for expenses and storage of 190 loads pig iron, at public yard, $168XW
“ Robebt G. Walmsley,
“For Superintendent of Streets.”
Mr. White said if Mr. Coddington was aggrieved, he must sue the corporation, it made no difference to him, that merchants must look out for their iron ; when I showed White said notice, he did not deny his signature in any way; the invoice was about 100 tons; it cost a dollar a load to remove it from corporation yard, and there should have been 100 loads.
Being cross-examined, he said:
George Lee drew away the iron for the plaintiff; I do not know what was paid.
George Lee was called as a witness for plaintiff, and testified:
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That he was a cartman in the employ of the plaintiff in September last; that he carted the iron from the corporation yard; I charged a dollar a load; it was re-weighed at the corporation yard.
Peter D. Dema/rest was called as a witness for plaintiff, was sworn, and testified:
That he was a city weigher; that he weighed the iron at pier 37; that 30 cents per ton is the regular price for weighing iron. The iron was under my charge.
Being cross-examined, he said :
I weighed the iron on or about the 1st of September last, for Poppy & Co.; I commenced weighing it on the 1st of September ; it was not then all unloaded; they commenced unloading it on that day; also, weighed some on the 2d and 3d; I was there when it was carted away; I suppose Poppy & Co. were the owners of the iron.
The plaintiff’s counsel here rested. The defendants’ counsel moved that the complaint be dismissed, on the ground that there was no proof of ownership of the iron in the plaintiff.
The court denied the motion, to which the defendants’ counsel excepted.
Defendants’ counsel opened the case for the defence, and offered in evidence an ordinance of the mayor, &c., of May 30, 1849. §§ 318 and 321 are as follows.
§ 318. The Superintendent of Streets is hereby authorized, and it is made his duty to order any article or thing whatsoever, which may encumber or obstruct a street, wharf, or pier, to be removed, and if it be not removed within 24 hours thereafter, to order the same to be removed to the yard occupied by the Superintendent of Repairs and Public Buildings, or other suitable place.
§ 321. All articles removed, as provided in § 318, may be redeemed by the owner, upon his paying to Superintendent of Streets, for the use of the corporation, the necessary expenses of removal, together with six cents per day for every cartload thereof, during the time it shall remain unclaimed.
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Other witnesses were then examined on the part of the defendants, but their testimony, as immaterial, having no bearing upon the questions upon which the case was determined, is omitted.
The defendants offered to prove that the iron was a nuisance, in the public way, which evidence the court excluded, to which ruling the defendants excepted.
The court charged the jury, that the defendants had no right to remove the iron before the time fixed in their notice; and directed the jury to assess the damages the plaintiff had sustained ; to which defendants’ counsel excepted.
The jury returned a verdict for plaintiff, for $297.08.
The court ordered judgment to be suspended until hearing and decision at general term, with leave to the defendants to move for a new trial on a case or bill of exceptions, to be heard at the general term in the first instance.
R. J. Dillon, for the defendants,
now moved for a new trial npon the following grounds.
I. The court erred in denying the motion made by defendants’ counsel to dismiss the complaint. 1. The plaintiff brings this action for damages, which he alleges he has sustained by reason of the illegal, wrongful, and malicious taking and detention of personal property belonging to him. This allegation was material, and was controverted by the defendants’ answer, and it was therefore incumbent upon the plaintiff to prove it (Code of Procedure, sec. 168). 2. Ko sufficient proof of ownership was offered.
H. In an action for trespass de bonis asportatis, which this resembles, the gist was the possession, actual or constructive, of the plaintiff, at the time; and he must have had, at least, the right to reduce the goods to possession when he pleased (Smith v. Milles, 1 Term Rep. 475-80; Ward v. Macauley, 4 Term Rep. 489; Putnam v. Wiley, 8 John Rep. 432 ). 1. The plaintiff, in this case, had neither actual nor constructive possession. 2. He had parted with his right to the possession, by the sale of the iron on the day in question, to the witness,
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Benjamin, who had a regular memorandum of the sale, giving him an immediate right to the possession. 3. The rule of law is, that a contract for the sale of goods, where nothing remains to be done by the seller, before making delivery, transfers the right of property, although the price has not been paid, nor the thing delivered (Olyphant v. Baker, 5 Denio, 379 ). 4. In this case, there was no act to be done, on the part of the plaintiff, to consummate the bargain, as regarded the passing of the property—and as the memorandum of sale gave an immediate right of possession to the vendee, both property and possession were out of the plaintiff.
III. The judge erred, in charging the jury, that the defendants had no right to remove the iron before the time fixed in their notice. 1. .The ordinance under which the defendants ordered the iron in question to be removed, made it their duty to have the same removed, if it was not removed by the owner, within twenty-four hours after the order had been given for its removal. Provided, then, the notice was actually posted up for twenty-four hours before the removal was commenced by the defendants, the owner cannot complain, and the defendants but discharged their duty. 2. The notice was up in a conspicuous place on the pier, between eight and nine in the morning of the 2d September (see testimony of Wilkins) ; at nine on the 3d, the defendant, Moneypenny, commenced carting the iron away. More than twenty-four hours had therefore elapsed, from the time of giving the order, till the time of removal. 3. The defendants were authorized to remove the iron, under their notice of 1st September. 4. The defendants can be bound by the notice of 2nd September, only on the ground of estoppel. But the doctrine of estoppel does not apply. The defendants owed no duty to the plaintiff—entered into no contract with him, nor does it appear that the plaintiff relied or acted upon the faith of the notice. He had made no preparation to remove the iron, and clearly was not aware of the notice—so far as appears, it was first seen by the purchaser, Benjamin, at 2 o’clock on 3rd September. There can be no intendment in favor of the' plaintiff, because he was violating the law, nor against the defendants, because they were acting in discharge of their duty (Cow. & Hill—Phillips on Evidence,
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3, 367, 375; Welland Canal Co. v. Hathawa, 1 Greenleaf, secs. 207, 209).
IV. The offer made by the defendants, to prove that the iron was a nuisance in the public way, should have been accepted. 1. Because, if a public nuisance, any individual had a right to abate the same, and he need not aver any special damage to himself (3 Blackstone’s Com. p. 4 & 5, N. Y. Chitty’s Edition; James v. Hayward, Cro. Charles, p. 184; Houghton v. Butler, 4 Term R. p. 364; Hart v. Mayor of Albany, 9 Wend. p. 589, 90, Opinion of Sutherland, J.). 2. Admitting that the doctrine is, that no one but a party aggrieved can remove a public nuisance, the defendants had a right to make the removal. They were the agents of the Corporation of the City of New York, who were the parties aggrieved, and to whom the right to remove nuisances belongs, as an incident to their control and supervisory power over the streets, wharves, and piers of said city.
F. R. Sherman, contra, for the plaintiff.
I. The motion for a nonsuit was properly denied—as there was abundant evidence that plaintiff was owner of the iron.
II. Whether the iron was a nuisance or not was immaterial, for if it was, defendants had no right to remove it to the public yard, without a notice, or order given, as directed by the ordinance ( 14 Wend. 122 ).
M. The defendants had no right to remove the iron, on or before the 3rd of September, because their notice or order was a stipulation not to do so, and upon this stipulation the plaintiff acted. A different construction would be a fraud on the plaintiffs (Cowen & Hull’s Hotes, 200, 202, and authorities there cited; Kingsley v. Vernon, 4 Sand. Sup. C. R. 364).
IV. There should be judgment for the plaintiffs, with costs.
The clear justice of this case is with the plaintiff, and we should have regretted had we been forced, upon technical grounds, to disturb the verdict; but we are entirely satisfied that the objections that have been urged, have as little support from authority, as from reason.
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The sale to the witness, Benjamin, did not divest the title of the plaintiff, so as to deprive him of the right, as owner, to maintain this action. There was no actual or constructive delivery of the possession of the iron, for the evidence shows that nearly all of it had been removed before Benjamin presented the order which the plaintiff had given him, and, until this order was delivered and executed, it was certainly not the intention of the parties that the sale should be consummated. It was certainly not their intention that Benjamin should be bound by the contract, unless the order should be complied with. It is true that, in many cases, a contract for the sale of goods, operates, without an actual delivery, as an immediate transfer of the title and of the possession, but it will be found upon examination, that all these are cases in which the actual possession, which, by construction of law, vested in the purchaser, remained, with his consent, in the vendor or his agents,—they have, therefore, no application to the case before us. Here the iron was the sole property of the plaintiff1 when the defendants began to take it away, and it was to him alone that they could be responsible for their wrongful acts.
That the conduct of the defendants in removing the iron at the time, and in the manner they did, was wrongful, and rendered them liable as trespassers, we cannot doubt. The ordinance of the corporation under which the defendant, White, as superintendent of the streets, professed to act, allows to the owner of any article or thing which, as an encumbrance or obstruction, is ordered to be removed, twenty-four hours after the order is given for making the removal; and, until this time has elapsed, and the removal has not been made, the superintendent has no further power to act. Until then, his removal of the property is unauthorized and illegal. There is no evidence before us that any other order was given by the defendants than that contained in the written notice posted up on the wharf, and bearing date on the 2d September, and admitting this notice to be equivalent to the order which the ordinance requires, (which may well be doubted,) by its fair construction, it gave to the owner of the iron the whole of the next day to make the removal; on the morning, however, of the next day, the defendants began the removal, and completed
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it early in the afternoon, and, by thus acting, they violated the terms of their own order, an d lost wholly the protection of the ordinance, which, they professed to execute.
The defendants cannot be excused on the ground that the iron, as an obstruction on the wharf, was a public nuisance, which, as private citizens, they had a right to remove, and we think the Chief Justice was entirely right in excluding this defence. They were acting, not as private citizens, but as public officers, and, as such, they were bound to act in conformity to the terms of the ordinance of the corporation, and of the notice which they had given. Every unnecessary obstruction on a public wharf is a nuisance, and it is only upon the ground that it is so, that its removal can justly be ordered ; but it is not to be supposed that, when the superintendent of the streets has made an order for the removal of the property within a limited time, not less than that allowed by the ordinance, he can ship him sell of his official character, and at once abate the nuisance, as a private citizen. Such a constructian would make the ordinance a dead letter, and an order given in pursuance of it a trap and a fraud.
. It was also justly observed by the counsel for the plaintiff that, admitting that the iron in its actual situation was a nuisance, which, as such, the defendants might have been justified in removing, they certainly had no right to transport the property to the public yard, and exact from the plaintiff the payment of heavy charges, as the condition of its restoration. We agree with the counsel, that these acts were plainly unauthorized, and had the mere removal been lawful, would have sufficed to render the defendants liable as trespassers, ah initio.
The jury have given to the plaintiff little more than the amount, with interest, that he was compelled to pay; and these, we think, are the least damages that the plaintiff was entitled to recover. The motion for a new trial is denied, with costs, and judgment must be entered for the plaintiff upon the verdict.