COURT OF APPEALS.

#### John Radway and others, appellants agt. Jeremiah Briggs and Nathaniel Briggs, respondents.

The lessees of'the *wharfage*of a public pier from the corporation of the city of New York, where in the lease is assigned the *wharfage*which shall or may arise or accrue during the time covered by the lease, the lessees agreeing* to keep the premises in repair, are liable for an injury arising during the lease, by which a horse is backed off the pier and drowned, in consequence of neglect to keep the string pieces thejyeon in proper repair.

It was error for the court below to *nonsuit*the plaintiffs, on the ground that they had not shown that the defendants (the lessees) were *in*possession, under their lease, of the premises in question, at the time of the injury.

The naked right to collect wharfage, which was all that the defendants possessed in this case, is incorporeal in'its nature, and is incapable of any other or different possession than grows out of the right itself, and is incident thereto, and which attached by force of the agreement which originated it immediately on its execution and delivery.

The defendants were not entitled to the exclusive physical nossession of the pier *423by the terms of their lease; neither was it in the power of the corporation to grant it to them. A public pier is a part of the public highway, and must be devoted to the public use. k

*September Term,*1867.

Appeal from the common pleas in the city of New York.

The plaintiffs brought their action to recover the value of a horse and cart and a load of merchandise. On the trial they proved that, in March, 1858, their carman drove upon one of the public piers, in the city of New York, with a load of merchandise, to deliver it on board of a steamer lying there. That whilst there the horse became unmanageable, backed into the river, and was drowned. They also proved that the string piece on the westerly side of the pier (the side on which the horse backed off) was in an unsafe condition, being nor more than *two inches*above the surface of the pier. ■

They further proved a lease from the' corporation of the city of New York to the defendants, bearing date March 4th, 1855, which first recited that the corporation was the owner of several wharves, slips, piers or bulkheads in said city, and entitled to collect and receive the wharfage and slippage thereof, and had agreed to sell and assign their right to the • collection of wharfage at some of them to the defendants for the term of five years from the 1st day of May then ensuing. This instrument then proceeded to convey to the defendants, *u*them heirs and assigns, all and singular the wharfage which shall or may arise,' accrue or become due between May 1st, 1855, and May 1st, 1860, for the use or occupation, by vessels of more than five tons burden, of any of' the wharves, slips, piers or bulkheads belonging to said parties of the first part, in the East river, or of, in "or to which they are entitled, to receive and collect the wharfage and slippage thereof, at the west side of Pier-No. 12, and the bulkhead adjoining the foot of Old Slip, excepting all such docks,, wharves, piers and slips as are otherwise leased by said parties of the first "part, or used for ferry purposes.” The defendants covenanted *424“during the continuance of said lease, to keep the said wharves, piers or bulkheads in good repair, at their own proper cost and charge, and surrender the same at the expiration of said term, in as good condition as they are at the time they take possession thereof, the natural wear and decay excepted.”

The/ also covenanted that, during the same period, they would “keep the wharves in good condition and safe and proper repair, *including especially the string pieces,*and other superficial portions thereof, *for safe usage,”*&c., &c.

They also covenanted that they would, “ on the last day of the term demised, or other sooner determination thereof, surrender and yield up the said rights and privileges hereby demised, with all and singular the rights, members, privileges and appurtenances thereto belonging into the hands and possession of the parties of the first part, without fraud or delay.” The defendants agreed further, on their part, that no' demand should be made nor any compensation received for the occupation of the top or surface of any of the public wharves or piers, for any purpose whatever.

At the close of the plaintiffs’ evidence, the defendants’ counsel moved to dismiss the complaint, on the ground that the plaintiffs had not shown that the defendants were in possession of the premises in question at the time of the occurrence ; and the court granted the motion.

The general term affirmed the judgment, and the plaintiffs appealed to this court.

Chables N. Black, *for appellants.*

Benedict, Bubr & Benedict, *for respondents.*

Fullerton, J.

It was not necessary for the plaintiffs to prove that the defendants were in the actual possession of the pier, to entitle them to recover in- this case.

They were not entitled to the exclusive possession, by the *425terms of their lease; neither was it in the power of the corporation to grant it to them.

A public pier is a part of the public highway, and must be devoted to the public use. The exclusive use of a public pier may be granted by the common council of the city of New York,-to vessels engaged in commerce, or for commercial purposes (Davies’ *Laws,*705), but not to individuals, for private purposes, to the exclusion of the public. It has been suggested, too, that this must be done by the city, in its legislative capacity, and not by mere, contract through its officers. *(The Mayor*agt. *Rice,*4 *E.*D. *Smith,*609.) By various statutes of this state, authority is given to the owners of private wharves or piers, and to the corporation, as to public piers, to collect wharfage and slippage from vessels that occupy them, the- rates being fixed by law.

The accident in this case occurred on one of the public piers of the city of New York, for the use of which the city had the right to collect wharfage, being charged, of course, with the correlative duty of keeping it in repair. The legal effect of the instrument given in evidence on the trial was to subrogate the defendants to the place of the corporation, investing them with all the rights and subjecting them to all the duties of that body, as the owner of a public pier.

This will appear plain, when reference is made to the terms of the instrument. It sells and assigns the *wharfage*which shall or may arise or accrue during the time covered by the lease, the lessees agreeing to keep the premises in repair.

But it does not purport to give possession of the property; en the contrary, the lessees were required to covenant that ‘‘no demand should be made nor any compensation received for the occupation of the *top*or *surface*of such wharves or piers, for any purpose whatever.”

The defendants in this case, therefore, had no other right in or to the use or possession of the property not enjoyed by every other citizen in common with them, except the right *426to collect the wharfage to which their agreement entitled them, and the right to enter for the purpose of making repairs, in compliance with their covenant.

I have not overlooked the fact that the lessees covenanted “to surrender the piers, at the expiration of the time, in as good condition rs they were at the time they took possession thereof.”

But these were not apt terms to express the real meaning of the parties. This language was used in connection with and is a part of the covenant to keep in repair, and was designed to express the condition which the property should be in at the expiration of the term, rather than to define the tenure by which the defendants held it.

This is rendered the more apparent when we refer to another clause, at the close of the instrument, where the lessees covenant to “surrender and yield up the *rights and privileges*demised.”

The naked right to collect wharfage (which was all that the defendants possessed) is incorporeal in its nature, and is incapable of any other or different possession than grows out of the right itself, and is incidental thereto, and which attached, -by force, of the agreement which originated it, immediately on its execution and delivery. *(East Haven*agt. Hemingway, 7 *Conn.*186, 203.)

When, therefore, the plaintiffs were nonsuited on the ground that they had not shown that the defendants were in possession of the premises under their lease, the court overlooked the distinction between the bare right to collect wharfage and the actual physical possession of the premises in connection with which the right was exercised.

If a turnpike company should sell and assign the tolls which it had a right to receive, the assignee agreeing to keep the road bed in repair, in an action against such assignee, for damages growing out of his neglect to perform his duty, it would not be pretended that it would be necessary to prove that he had entered into possession of the highway.

*427It was necessary, however, to prove that the defendants accepted the grant, in order to make them liable for the plaintiffs’ loss; this being quite a different thing from the question of the possession of the premises. But that acceptance was proved by the introduction of the lease; for it.was signed by the defendants themselves.

Even if that had not been the case, the acceptance would have been presumed, upon the principle that a man is presumed to accept that which is a benefit. *(Camp*agt. *Camp, 5 Conn.*291; *Doe agt. Marston, 3 Wend. 149; Bailey agt. Culverwell,*8 *Bar. & Cres.*448; *Townson*agt. *Tickell,*3 *Bar. & Ald. 31.)*

Having accepted the grant,, the defendants were bound to keep the premises in repair. The damage which the plaintiffs sustained was caused by their neglect, and they are liable for it. The city exercised due care on its part, when it required the defendants to .keep the premises “in good condition and *safe*and proper repair, including especially the *string pieces.”*

And this the defendants failed to do.

It was the want of a safe and proper string piece that caused the accident, and the defendants are clearly liable *(Burton*agt. Barclay, 5 *M. & Payne,*785; *Mayor of Albany*agt. *Cunliff,*2 *Com.*165; *Henley*agt. *The Mayor of Lyme,*3 *B. & A.*77; *Brett*agt. *Cumberland, Cro. Jac.*399, 521; 4 *Cush.*277.)

The judgment should be reversed and a new trial ordered.

All concur except Hurt and Bockes, Judges, not voting.

Reversed. '