Opinion
January Term, 1903.
L. Laflin Kellogg, for the appellants.
Theodore Connoly, for the respondents.
There are three grounds upon which the judgment should be affirmed.
First. Considering the pier as a whole, the evidence fairly justifies the finding of the trial court that for upwards of ten years it had been used for the loading and discharging of sailing vessels regularly employed in foreign commerce and having a draught of more than eighteen feet of water. Such use of the pier, however, was principally upon that part of it variously referred to as the northerly or easterly half. The use of the part referred to as the northerly or easterly half by vessels of this kind and draught would not be sufficient alone to sustain the decision on the theory that the permit was issued in violation of section 845 of the charter. It is, however, claimed on the part of the appellants that the northerly or easterly half of the pier was, during the times in question, owned by an individual; and upon that assumption their counsel argues that the granting of the permit was not prohibited by the section of the charter to which reference has been made. If that were so, it does not necessarily follow that the permit might be lawfully issued; for this entire pier is, in a limited sense, a public highway, and it seems that the owner of neither half would be authorized to so inclose or obstruct it as to prevent passage over the same by persons lawfully having business upon the other half ( People v. B. O.R.R. Co., 117 N.Y. 150), which decision appears to relate to the pier in question. But however this may be, the record does not present the question for review. It was neither alleged in the complaint nor proven upon the trial that the city did not own the entire pier. When the defendants rested, but before the evidence was declared closed, their counsel moved for judgment. The court manifested an intention to grant the motion, and thereupon counsel for the plaintiffs stated that he wished to show, before the case was closed, that the city had no title to the north side of the pier within a year; whereupon the the court said, "That is not material;" and defendants' counsel asserted that the city had always owned the south side of the pier. Counsel for the appellants thereupon said, "I offer to prove that until within the last six months the city had no title to the north side of the pier." This was objected to by counsel for the respondents on the ground that it was incompetent, irrelevant and immaterial; whereupon the court dismissed the complaint upon the merits. No exception was taken by counsel for the appellants; consequently, no error in this regard is presented for our review. It follows, therefore, that on these facts, under section 845 of the Greater New York charter, the use of this pier for a dumping board was prohibited. Consequently, the permit was void and was properly rescinded.
Second. Moreover, if the permit be construed as a license and not as a grant, it is clear that it was revokable at pleasure. ( Murdock v. Prospect Park Coney Island R.R. Co., 73 N.Y. 579; Wiseman v. Lucksinger, 84 id. 31; Cahoon v. Bayaud, 123 id. 298; Babcock v. Utter, 1 Abb. Ct. App. Dec. 27.)
Third. Assuming, without deciding, that the permit constituted a lease, it manifestly was only a lease at will, which was terminable by the notice; and the rights of the appellants thereunder would terminate at the expiration of thirty days from the giving of the notice, which was prior to the trial of this action. The action was commenced on the 5th day of May, 1902. It was tried on the 28th day of October, the same year, and judgment was entered on the decision on the eighth day of November thereafter. If the permit constituted a lease, being subject to the pleasure of the board, it could not be maintained that there was a lease for any definite period, although the rent was fixed by the year and payable quarterly. Being subject to the pleasure of the board would necessarily make it a tenancy, if a tenancy at all, at will or by sufferance; and the most that appellants would be entitled to would be thirty days' notice. (Real Prop. Law [Laws of 1896, chap. 547], § 198.) If it were a tenancy, the notice, although defective in attempting to terminate the tenancy in less than thirty days, became operative after the lapse of thirty days. ( Burns v. Bryant, 31 N.Y. 453.) Accordingly, if it were a lease, all of the rights of the appellants terminated on the 23d day of May, 1902, which was thirty days after the notice was given and which was before the trial of the action. The giving of this notice, as has been seen, was pleaded in the complaint and in the answer, and proved upon the trial. The action is in equity. No damages are demanded, and no question with reference to the right of the plaintiffs to damages is involved in the issues or adjudicated by the decision. The only relief prayed for is of an equitable nature. Consequently, the appellant being entitled to no equitable relief at the time of the trial, the complaint was properly dismissed.
It follows, therefore, that the judgment should be affirmed, with costs.
O'BRIEN, J., concurred.
VAN BRUNT, P.J., and McLAUGHLIN, J.:
We do not think the permit had any of the attributes of a lease. Otherwise, we concur.
PATTERSON, J., dissented.
Judgment affirmed, with costs.