78 A.D. 361 | N.Y. App. Div. | 1903
Lead Opinion
There are three grounds upon which the judgment should be affirmed.
First. Considering the pier as a whole, the evidence fairly justifies the finding of the trial court that for upwards of ten years it had been used for the loading and discharging of sailing vessels regularly employed in foreign commerce and having a draught of more than eighteen feet of water. Such use of the pier, however, was principally upon that part of it variously referred to as the northerly or easterly half. The use of the part referred to as the northerly or easterly half by vessels of this kind and draught would not be sufficient alone to sustain the decision on the theory that the permit was
Second. Moreover, if the permit be construed as a license and not as a grant, it is clear that it was revokable at pleasure. (Murdock v. Prospect Park & Coney Island R. R. Co., 73 N. Y. 579; Wiseman v. Lucksinger, 84 id. 31; Cahoon v. Bayaud, 123 id. 298; Babcock v. Utter, 1 Abb. Ct. App. Dec. 27.)
Third. Assuming, without deciding, that the permit constituted
It follows, therefore, that the judgment should be affirmed, with costs.
O’Brien, J., concurred.
Concurrence Opinion
We do not think the permit had any of the attributes of a lease. Otherwise, we concur.
Patterson, J., dissented.
Judgment affirmed, with costs.