191 A.D. 639 | N.Y. App. Div. | 1920
The demurrer of the plaintiff to the answer required an examination of the complaint to determine whether the allegations therein are sufficient to constitute a cause of action, (Baxter v. McDonnell, 154 N. Y. 432.)
The defendants are the permanent receivers of the Atlantic Dock Company, hereinafter referred to as the defendant. The facts set forth in the complaint are as follows: The plaintiff and its predecessor in title and grantor operated for several years prior to the year 1881 and the plaintiff does now operate a ferry across the East river from the foot of Hamilton avenue in the borough of Brooklyn to Whitehall street in the borough of Manhattan under a franchise from the city of New York. The plaintiff’s grantor was known as the Union Ferry Company of Brooklyn. It will be referred to as the predecessor. One of its directors was also a director in the defendant corporation. He was the chief executive officer and the dominant and controlling factor in the actual management of both the predecessor and the defendant. He continued to be the controlling manager of defendant until his death in the fall of 1915. Thereafter the trustees of his estate were as such, or individually, the dominant factors in and in practical control of plaintiff and defendant.
Plaintiff believing the statements so made and in ignorance of the fact that defendant had no valid claim, paid to defendant from November, 1890, down tb about February 1, 1916, large sums of money consisting of quarter annual payments of $750, amounting altogether to over $75,000. The payments were made upon the representation that plaintiff was using in the operation of the ferry the southwesterly half of the slip owned by defendant. Neither plaintiff nor defendant learned the facts in relation to said lease and claim until about February, 1916, after there had been a change of officers and in the executive management of plaintiff, and the new officers had requested from defendant a statement as to its right to receive and plaintiff’s obligation to pay said rent. The defendant thereupon claimed that it was the owner of the said southwesterly half of the slip landing or approach to the ferry at or about Hamilton avenue in connection with which said rights and privileges had been granted by defendant. Plaintiff shortly thereafter upon an investigation learned for the first time that the property which had been the subject of said lease had always been since November, 1890, owned solely by plaintiff and that defendant did not own it or have any interest in it, and the lease and claim for rent had been made under mutual mistake as to such ownership. Plaintiff also learned at that time that on or about May 4, 1881, while the predecessor was in possession of and using the ferry, and
The lease expired by its terms on May 1, 1886, and was never renewed or extended by any writing. The defendant never did give possession of the southwesterly half of the slip to plaintiff or its predecessor since it was not the owner and the lease was made under the mutual mistake to which reference has already been made. The complaint further alleges that the plaintiff did not learn of the mistake nor of defendant’s having no title until March, 1916.
The payments made to defendant were made inadvertently and without any obligation by plaintiff to make the same. They were made without consideration. On April 26, 1916, plaintiff demanded from defendant repayment of the moneys so paid but defendant refused to pay. Between. May 1, 1881, and February 1,1916, a large part of the space mentioned in the lease lying between the bulkheads and bulkhead fine was filled in and is now part of the public streets, and out of the possession of plaintiff. The right or privilege of using the side or face of defendant’s bulkhead and pier was, prior to February 1, 1916, abandoned and given up, and any ferry rack or bridge theretofore secured to any bulkhead or pier of defendant was taken down and removed and placed upon plaintiff’s own land.
The defendant has brought three actions in the Municipal Court against the plaintiff upon the lease of 1881, alleging
Judgment is demanded that the lease and any alleged renewals thereof be adjudged void, and that defendant has no right, title or interest, or claim of any kind in the southwesterly half of the said ferry slip or the waters thereof or the lands under the waters thereof; that defendant be enjoined from attempting to in any way enforce the lease or collect any moneys thereunder, or interfere with plaintiff’s use of the slip or any of the fixtures, racks and appurtenances therein in any way. It is also demanded that defendant pay the sum of $20,000 with interest from April 26, 1916. Plaintiff finally asks, if it be found it is not entitled to the foregoing relief, that any rent due from February 1, 1916, by reason of the lease be apportioned, so that in any event the plaintiff shall not be required to pay rent for any more than so much of any privilege granted by defendant as is now in actual possession of plaintiff, and for such further relief as may to the court seem just.
Since a copy of the lease is not made part of the complaint we must have recourse to the latter to ascertain what was leased. We think the property leased was so much of defendant’s pier and bulkhead as was necessary to secure the plaintiff's ferry rack and bridge. A proper construction of the lease as described in the complaint would not warrant the inference that it included the right to use and occupy the waters of the slip as a separate element of the demise. Such use and occupation was simply an incident to the use of defendant’s property. This view has the advantage of being consistent with the legal rights of the parties in the property owned or used by them as we understand such rights, and the
In Jordan v. Metropolitan Gas Light Co. (65 How. Pr. 255) the court granted an injunction restraining defendant from interfering with the construction of a ferry house and improvement at the foot of Forty-second street, New York city. The court referred to the claim of the defendant that the construction would abridge the advantageous use of its property south of the street line, and said that if that should prove to be the fact, as long as the improvements were confined within the limits of the. street defendant could not for that reason interfere to prevent the improvements and changes being made; that if the use of defendant’s property would be so abridged it would result, from the fact that its northerly pier was constructed too near the southerly line of Forty-second street; that it could not, by locating it there in that manner, restrict or limit the right of the city to provide for the improvement of the street and of the ferry at the foot of it, as that had been allowed for the purpose of meeting the exigencies and convenience of the traveling public.
In Stevens v. Rhinelander (5 Robt. 285) plaintiff sought to restrain defendants from building a pier within 100 feet of land owned by them and upon which they had erected structures at the foot of Barclay street, New York city, for ferry purposes. The court held that there was no violation of chapter 763 of the Laws of 1857, as the bridge and ferry rack built solely for ferry purposes did not constitute a pier within the meaning of the act.
From what has already been said it must be apparent that
A consideration of the defendant’s argument on this appeal leads to a like result, for it is not shown that defendant had anything else to lease except so much of its pier and bulkhead as was used by plaintiff. The defendant says that it claims that there was a lease of an easement which the defendant had in the slip, to wit, the right to bring vessels across the slip and berth them alongside the defendant’s pier as well as the right to use the side of the pier and the bulkhead; that it was an easement, the exercise of which by the defendant would be fatal to the maintenance of the ferry, for if the defendant exercised its right to moor a vessel alongside of its pier it would be impossible for plaintiff to operate the ferry as one vessel might he alongside the pier for a week.
The defendant was incorporated by chapter 215 of the Laws of 1840, for the purpose of erecting and maintaining bulkheads, piers, basins and other structures for commercial uses in the sixth ward of the city of Brooklyn and within the line established by law for the erection of docks and bulkheads, and to receive reasonable dockage and wharfage from all persons using the game. The act further provided that nothing therein should be taken to destroy, abridge or in any manner impair the rights of the city of New York in respect to the land between the lines of high and low.water along the Brooklyn shore of the East river, nor should the act authorize any dock, wharf, pier or basin to be erected upon or in front of any of the lands belonging to the city of New York without the permission of the common council.
The defendant relies upon the case of Murray v. Sharp (1 Bosw. 539) in support of its claim that it is entitled to use of the waters adjoining its pier and bulkhead not included in its grant and to collect wharfage thereupon. The plaintiff in the Murray case in 1797 was the owner of upland at the upper corner of Wall street and the East river, and the city,
In Matter of Public Service Commission (Montague Street) (224 N. Y. 211), also cited by defendants, the rapid transit commission instituted a proceeding to acquire land for the purpose of constructing a. tunnel under the ferry slip at Montague street and between two piers owned by the New York Dock Company, appellant. The tunnel was to be forty-five feet below mean low water at the pier line. The owners of the upland were awarded compensation for the land and land under water out to the pier head, but compensation was refused the dock company on the ground it had not proved title to any of the property affected. Upon appeal the Court of Appeals said no permanent obstruction could interfere with appellant’s use of the docks for the mooring of its vessels and the collection of wharfage. It further said that if navigation alongside of appellant’s piers had been interfered with it might be entitled to compensation, but that the court was not yet called upon to decide whether such rights could be taken by the city, or whether if taken
Langdon v. Mayor, etc. (93 N. Y. 129) is also cited as holding that the grant of wharfage at a wharf adjoining land under water belonging to the grantor carries with it, as a necessary incident, a right of way, or access for vessels over the grantor’s adjacent land. In that case, however, the plaintiff was deprived of all access and the grant thus nullified. It could not be cut off from access to the front of its pier. (Williams v. Mayor, etc., 105 N. Y. 419, 429.)
None of the cases cited by defendant is authority for claim of a right to use the waters of the slip in relation to its pier and bulkhead. On the other hand, it was held in Jenks v. Miller (14 App. Div. 474, Cullen, J.) that while the owners of adjacent upland had the right of access to the river and also the right to construct a proper pier therein, ■they had no easement or interest in the lands under water of the adjacent proprietors. It was also so held in Consumers Coal & Ice Co. v. City of New York (181 App. Div. 388) and New York Dock Co. v. Flinn-O’ Rourke Co., Inc. (N. Y. L. J. May 3, 1917; affd., 181 App. Div. 956). In the former case the plaintiff sought to restrain the city and the owner of the adjacent property from filling in the land under water out to the bulkhead fine, claiming that to do so would constitute a violation of the restrictions as to 100 feet space between piers in the act of 1857. While the decision upholding the defendant might be considered as not strictly pertinent to the question here presented, as the act would seem to apply only to piers extending from the bulkhead fine established by law, the court took occasion to pass upon the claim of the plaintiff to use the lateral waters in front of defendant’s upland, and held it had no such right. In the case at bar the defendant frankly states that the possession of the easement claimed by it would enable defendant to impair plaintiff’s use of its slip by having vessels of the defendant moored for a week to its pier. Nothing could be more convincing of the unsoundness of its claim than the statement so made.
The conclusion is reached that the lease of 1881 was a valid lease to the extent that it demised the use of the defend
It follows that the complaint does not state a cause of action entitling plaintiff to the relief therein demanded and should be dismissed. The defendants state in their brief that if the complaint is dismissed they are indifferent to the disposition of the counterclaims which may be the subject of a separate action and we, therefore, have no occasion to pass upon their sufficiency.
The judgment should be reversed, with costs, and the complaint dismissed, with costs.
Clarke, P. J., Laughlin, Dowling and Merrell, JJ., concur.
Judgment reversed, with costs, and complaint dismissed, with costs.