24 F. 237 | S.D.N.Y. | 1885
The measurements in regard to the position of the libel-ants’ boat when sunk, and the place of the hole in the bottom, when compared with the drawings of the position of the old pier, show pretty conclusively that the pile which caused the damage was within the interior lines of the northerly projection from the former pier. That projection was a crib-dock. There is evidence that piles wore driven as fenders along its exterior sides; but the pile in question was, as I have said, in the interior of those lines, and must liavo been several feet distant from any of them. This shows that the pile that caused this injury is different from any one of those shown in the drawings submitted, and different from any one known to exist. There are only two hypotheses to account for it: one, that it may have been a pile driven in the inside of tlie crib-dock for tlie purpose of fastening it when first brought there, or while in course of construction; the other, that the pile was a water-soaked drift log, which had become casually imbedded in the bottom, so as to form an obstruction. Either of these hypotheses is possible. There is no proof as to which is the fact. So far as the evidence shows, there -was no pile used in building the crib-dock; yet it is possible that such a pile may have been driven down. But there are strong circumstances against the probability of this explanation.
The location of this pile is shown to be from one to three feet westward of the front line of the present platform of the Oceanic Company, extended, and some 20 foot to the southward of its south-westerly corner. This spot is certainly within the limits that the tosti
Treating the damage as done through some drift spile, thus accidentally imbedded in the mud, no sufficient ground appears for holding either defendant liable, considering the careful dredging that is proved to have been done. The city, in 1874, leased the slip to the Oceanic Company, granting, not the mere right of wharfage, 'but exclusive use and possession of the pier and slip. The pile cannot, I think, have been there at that time. It must have-come there since. The Oceanic Company agreed to do all repairs, and to keep the slip clear. They, or their under-lessees, have been in exclusive possession ever since. No notice of any such subsequent obstruction ever came to the knowledge of the officers of the corporation, and no negligence is, therefore, chargeable upon it.
The Oceanic Company, several years ago, underlet that portion of the premises upon which this accident happened to the Citizens’ Company. The latter company, by this sublease, undertook to perform all the obligations of the Oceanic Company in its lease from the city. Full and exclusive possession was taken and has been continued by the sublessees. They have not been sued. It does not appear that the spile that did the injury was there at the time when the Oceanic Company made its sublease; and it is not probable that it was there then; and if it came there since, inasmuch as the Oceanic Company had no notice of its existence, that company must be held exempt on the same ground that the city is exempt, viz.: That the slip not being in bad order at the time of the lease, the lessor, when exclusive possession is transferred to the lessee, who covenants to keep in repair, is not liable for a subsequent obstruction of which life has no notice. Per Woodruff, J., in Taylor v. Mayor, 4 E. D. Smith, 559, 261; Swords v. Edgar, 59 N. Y. 28.
I must find, therefore, that the libelants have not shown any neg
