65 How. Pr. 255 | N.Y. Sup. Ct. | 1883
The ferry property which the plaintiff has been engaged in improving and extending was. authorized to be located at .the foot-of West Forty-second street on or about the-10th of July, 1856, and it actually went into operation on the 2d of June, 1858. It continued to be operated from that time until the plaintiff became possessed of it, under the authority of the common council of the city of ¡New York. Subsequent to the commencement of his possession, and on the 30th of April, 1883, he received a lease of it for the period of ten years from the 1st of May, 1881. The ferry was located and operated under the authority vested in the city of ¡New York by its original charter, and the law afterwards enacted declaratory of its powers and authority, and at the time when it was established no question seems to have been made as to the right of the city to locate and maintain a ferry at that point. Before the time when it was located, the city conveyed the property now owned by the defendant to Charles E.. Appleby, who continued to own it until the 1st of February,T 1860, when he conveyed it to the defendant. And' the fact that the ferry was maintained with the apparent acquiescence of Appleby, the defendant’s grantor, and also with that of the-defendant itself after it acquired title to the property,, very decidedly confirms the presumption that it was established there by the exercise-of lawful authority on the part of the-city:.
Before the plaintiff received his lease the business of the-ferry had increased to such an extent as to render the facilities made use of insufficient for the transaction of the business, and the property itself, from the effects of age and use,
It has-" been» objected' that the action of the board was not taken' in* the manner prescribed' by the statute, but it very clearly appears- that the plans-which were-adopted were presented to and approved by the- commissioners of the sinking fund of the city, and that with the action; of the dock department itself was* all that was essential to-render them-legal and •obligatory. Mud it was- because of this authority and the action taken under it' that the application was made by the plaintiff" to* the board of department of docks for leave to make' the changes, extensions and improvements directed by the common council of the city»;. The-proposed* changes and!
As the Terry had been located and maintained under the ¡apparent authority of the city, and the plaintiff, by means of •its reserved power, was directed to make the improvements -deemed to be necessary for the safe and convenient use of the ferry, and the work itself was particularly prescribed and limited by the department of docks, to which authority over it 'had been given by the act of 1871 and the act of 1882, it certainly had the appearance of regularity as well as legality. It was for the city authorities to determine what was appropriate and judicious upon this subject, and to prescribe the directions adapted to "carry that determination into effect. Its supervision and control of the property for the purposes of the ferry seems to have been co-extensive with the exercise of this power. And as the facts have been made to appear, it was not only proper but necessary that the work itself should be done for the convenience as well as safety of the public having occasion to make use of the ferry.
But even if the proceedings of the common council and of ‘the board of department of docks should be regarded as ■irregular, if no rights of the defendant can be abridged or •affected by the irregularity, it is difficult to see how the [latter iis -in the position to make any complaint. If any
In support of its objections to the changes proposed to be made the defendant has assailed the work as unlawful under the terms of the deed executed and delivered by the city of Hew York to Charles E. Appleby, the defendant’s grantor. By this deed the city conveyed the property from the original high-water line, at the center of Forty-second street, to the westerly line or side of Thirteenth aven te as that was then projected. On the westerly bounds of Thirteenth avenue the line was extended at right angles in a southerly direction to the center of Forty-first street, and by the description contained in the deed it included the land between the center of Forty-second and Forty-first streets, extending easterly to the original line of high-water mark. But as to so much of the lan d as was within the boundaries of the streets, the deed contained a clause, “saving and reserving from and out of the hereby granted premises so much thereof as by the said map annexed forms part of portions of the Twelfth and Thirteenth avenues and Forty-first and Forty-second streets for the uses and purposes of public streets, avenues and highways as hereinafter mentioned.” The clause contained in the deed and those referred to are substantially the same as those inserted iu the deed to Astor, which was considered in Langdon agt. Mayor, &c. (28 Hun, 156). Whether this clause created an exception or simply a reservation was a subject which was discussed on the hearing of the motion. But it is not deemed to be necessary, as it was not in the case just mentioned, definitely to determine that point, for in either view, whether technically
. The case of Knickerbocker Ice Company agt. Forty-seeond Street Railroad Company (65 How., 210) has been urged upon the attention of the court as being in conflict with this view,
As the work has been directed it does not appear to carry the solid filling in the street beyond the bulk-head line established by the department of docks. From that point the ferry property as well as its slip are. to be constructed, and the filling in and pavement required east of the ferry-house on the street was clearly authorized by the authority reserved in the deed over the land within the boundaries of the street. But whether the city itself made these particular improvements on the street, or delegated the power to make them to the plaintiff, could be a fact of no moment whatever to the defendant. In either view it was no invasion of its rights, and it involved no more than the use of the power reserved by the deed, which in effect authorized the authorities of the city to improve the street in such a manner as to adapt it to
It has been objected that these improvements are not within the plans and lines adopted by the department of docks with the assent of the commissioners of the sinking fund. But because they do not extend to the outer extremity of the pier line adopted, that result certainly cannot be held to follow. As far as the improvements have been permitted they are substantially within the plans and lines of the dock department ; and whether they shall hereafter be projected further into the water must necessarily depend upon what this department may consider to be advisable or judicious hereafter.
The defendant insists, and affidavits have been produced in support of the position, that the improvements and changes will abridge the advantageous use of the property south of the street line described in the deed executed by the city to Appleby. But if that should prove to be the fact, as long as they are to be confined within the limits of the street over which the authority of the city has been retained, it cannot for that reason interfere to prevent the improvements and changes from being made. If the use of its own property shall be abridged in this manner that will result from the fact that its northerly pier line was constructed too near the southerly line of Forty-second street. It could not, by locating it there in that mannei-, restrict or limit the right of the city to provide for the improvement of this street and of the ferry at the foot of it, as that has been allowed for the purpose of meeting the exigencies and convenience of traveling public.
But, in answer to this objection, the affidavits have been produced showing that a sufficient space will still be left between the northerly wharf line of the defendant’s pier and
They do not complain, but on the other hand have approved and required the projected work to be done, and as these authorities have the legal right to control the street and its terminus in this manner the defendant cannot lawfully prevent the directions given from being carried into effect. The injunction applied for by the plaintiff will, therefore, be allowed, and that applied for by the defendant be denied.