Mayor of New York v. Scott

1 Cai. Cas. 543 | N.Y. Sup. Ct. | 1804

Livingston, J.

delivered the opinion of the court. This is an action for money had and received by the defendant, as wharfage, for vessels lying in what the plaintiffs call a slip, adjacent to that part of a pier which stands opposite Murray’s wharf. From the form of action the plaintiffs must show a title in them to demand this money. It is, therefore, unnecessary to inquire whether it belongs to the defendant or not. The corporation can have no such right, inasmuch as the land, on which the pier is erected, was never granted to them, nor was the soil under the watei where the vessel lay, for which this wharfage was paid, lío implied grant is contained in the act of the legislature. The corporation are only to grant as attorneys of the public, in case piers are sunk. That this is to be done under certain restrictions and regulations, means, not that they shall have a right to reserve the wharfage to themselves, which is to be theirs only in case of default in the owners of the lots in sinking piers, but that they are to regulate in what manner the right to wharfage shall be enjoyed, liar does the resolve of the common council of the 1st of June, 1801, make a difference. The reservation therein contained, if in an indenture, might have been binding on the defendant; but the corporation having exceeded their powers in making this reservation in a resolve of this kind, it cannot be binding on him. They had no right, in this way, to impose any terms they pleased, or they might arbitrarily have deprived the owners of lots of the right, which the legislature intended they should have, of sinking these piers. It cannot, therefore, be regarded in the light of a contract; for the defendant had a right to make these piers and bridges without thereby sanctioning any terms which might thus be imposed on him. liar can it be said that the corporation not having executed the powers vested in them by the act, the individual has no right to receive the wharfage. This would be to take advantage of their own wropg and neglect; nor does it follow, as has already been observed, that the money belongs to the corporation, if it be admitted that the defendant was wrong in taking it.

*This is no slip, which is an opening between two pieces of land or wharves. ' This pier extends into the Bast River, and is 20 feet from the side of the slip. The grant to John Murray, of May, 1797, is also important, for by this he is entitled to the wharfage of 98, feet.

It is the opinion of the court that the defendant have judgment.

Judgment of nonsuit.