Cannavan v. Conklin
1 Abb. Pr. 271
New York Court of Common Pleas
1865
Check Treatment
Cardozo, J.

The case presents only one question worthy of Consideration.

The action in the cause below was to recover for the loss of a horse which was killed on the 24th of Hovember, 1864, -by falling through the pier at the. foot of Forty-third street, on the Forth river.

The death of the horse, its value, and that the loss happened by reason of the negligence of the persons in possession of the pier, in suffering it to be in a dangerous and insecure condition, are sufficiently proven. The question is, whether the appellants occupied that relation to the pier when the accident occurred, as to make them responsible for it.

On the 1st of October, 1864, the appellants entered into an agreement with their co-defendant, Hesdorf, by which they let unto him “ their pier at the foot of Forty-third street, Forth river, for the term of seven months from 1st day of October, inst., to Hay 1st, 1865, * * * * reserving to themselves the right to use the said dock, and occupy as much of the pier as their business may require.”

The pro of-establishes that the appellants, before the making of this lease, had erected upon the pier, a pair of scales for the purpose of weighing.ice and coal, and that both before and after the making of the lease, the appellants used the pier and the scales which they had so erected.

They were, therefore, after the making of the lease, while *274such use continued, in the possession of the pier jointly with the defendant Hesdorf. Indeed, the only one of the appellants who was examined on the trial, did not attempt to deny the possession and use of the pier down to about November 1st. The dispute is, whether the possession of the appellants then ceased, or continued and existed at the time of . the loss. The accident happened on that part of the pier which had been used by the appellants. If the appellants were in possession of the pier when the accident occurred, they were clearly liable, irrespective of the question of ownership. The agreement that Hesdorf should keep the pier in as good condition as it was when the lease was made, does not affect the case. In the first place, Hesdorf was only to keep it in as good condition as it was at the time the lease was made, and the proof shows that it was in bad condition at that time, and so continued. Hesdorf was not to put the pier in good order, but to keep it in the same condition that it was in when the lease was made; and it does not appear that it was in any worse state when the accident happened than it was in when the lease was taken. However this may be, the undertaking of Hesdorf in that réspect is a matter solely between him and the appellants, and cannot release tne latter from their liability (growing out of their possession) to strangers. It may give them a claim for redress against Hesdorf, but that question does not arise here.

Hahn, a witness for the plaintiff, testified that on the 24th oí . November, 1864, which was after the accident, he had a load of coal carried from that pier to his yard; and John Wood, who weighed the coal, swore that it was weighed with the scales which the appellants had erected.

William Duane, another witness for the plaintiffs, stated that at and after the accident, these same scales, with which he had seen the appellants weigh ice, were yet on the pier. This was some evidence to show that the appellants then continued in possession of the pier, and if it be said that there was a conflict of testimony upon the point of possession, because one of the appellants swore that “ he thought the scales were removed about the first of November,” that presented a question of fact, of which the justice’s finding is conclusive. Besides, although one of the appellants swore that they had sold the pier, and had delivered a written conveyance of it, they did not produce the *275instrument, nor disclose its terms, nor did he swear that by the conveyance they had transferred anything except the title to the pier, and for aught that appeared, the appellants may not have parted with the right to use the pier, which they reserved by the agreement with Hesdorf. In the absence of such proof, I think the justice was justified in concluding that the appellants were in possession of the pier when the accident occurred; and if that be so, the question of title to the pier is immaterial, even if the appellants were in a position to raise that point. But they are not. They did not set up any such defence by way of answer, nor give the undertaking required by § 56 of the Code; and, therefore, under § 58, they are precluded from raising the question of title to the premises.

I think the judgment should be affirmed with costs.