#### The Board of Commissioners of Pilots, plaintiffs, *vs.*The Erie Railway Company, defendants.

1. Sheds, buildings, gates and fences upon piers or bulkheads in the port of New York, whether consisting of loose materials, or built upon and affixed thereto, are obstructions incumbering such piers or bulkheads, and interfering with their free use, within the meaning of the 8th section of the statute of 1857. *{Laws of*IY *Y.*1857, *p.*487,) as amended by the 5th section of the act of 1858. *{Laws of*1858, *p.*363.)

2. The occupants of piers or bulkheads thus incumbered, are liable to the daily penalty specified in the statute, if they fail to remove the obstructions, although they were originally placed there by others. By such neglect, and by using and occupying the erections as their own, they will be deemed to *keep*them there, within the intent of the 5th section of the act of 1858. McCunn, J. dissented.

3. Such incumbrances forming no part of the premises demised to the lessees of the piers or bulkheads, the latter are not bound to return them to the . lessors, at the expiration of the term; but they may remove them as incumbrances of the highway or as interfering with their right of wharfage.

*4.*The offense punishable under the act of 1857, was an interference with the *free*use of a bulkhead, and not merely an interference with *commercial*uses, or the purposes of commerce, access to shipping, or transaction of business.

5. The statute intended to commit to the Board of Commissioners of Pilots the guardianship entirely of so much of the highways as bordered the water against all nuisances by incumbrances; and not to separate persons, engaged in commerce from the rest of the community, so as to have their interests, alone, protected. And they used the proper language to authorize a prosecution for all such nuisances.

6. A notice to the occupants of piers or bulkheads “to remove from such bulkheads the buildings, sheds, gates and fences which are now there *placed or kepi''*by the occupants, is sufficient.

7. The notice is a simple warning to remove a nuisance within twenty-four hours, or. be subjected to the statutory penalty. After such warning both parties act at their peril; the occupants in omitting to remove the articles complained of; the commissioners of pilots in bringing an action for the penalty, if they do not remove them. Such commissioners have no power to determine what is an *ohtruction*and what is not, any more than to decide whether the persons notified created it or not.'

8. Such a notice will not be vitiated by embracing too much. If the persons notified are responsible for the presence of some of the articles on the bulkhead, which they are warned to remove, and those articles obstruct the free use of such bulkhead, their failure to remove them, after notice, will render such persons liable,' although they have in the written document containing *367such notice been also required to remove some which are not obstructions, or for whose presence on the bulkhead they are not responsible.

9. There is no objection to combining in one paper notices to remove obstructions on different bulkheads.

10. The law makes no distinction, as respects the days of the week for which the penalty is to accrue. A recovery may, therefore, be had for the full number of days after the expiration of the time limited in the notice, without excluding Sundays.

(Before Robertson, Ch. J., and Garvin and McCunn, JJ.)

Heard October 11, 1867;

decided January 6, 1868.

This action was brought to recover a penalty of $25 per day, imposed by section 8 of the act “ to establish regulations for the port of New York,” passed April 16, 1857, as amended -by chapter 226 of the Laws of 1858. *{Laws of*1857, *vol.*2, *p.*487, § 8. *Id.*1858, *p.*363, § 5.)

The complaint averred that the defendants, being in the use and occupation of certain bulkheads in the city and port of New Y"ork, between the piers known as piers Nos. 30 and 31, 31 and 32, and 32 and 33, North river, placed andkept on the said bulkheads obstructions built upon and affixed thereto, consisting of buildings, sheds, gates and fences, whereby said bulkheads were incumbered and their free use interfered with; that the defendants were duly notified by the plaintiffs to remove the obstructions within twenty-four hours,' and failed to comply with such notice, and demanded judgment for the penalty imposed by the law. The answer denied generally the allegations of the complaint, except that it admitted that nothing was done by reason of the notice, and alleged that the defendants were only lessees of the piers in question.

At the trial, before Justice Jones and a jury, it appeared that the piers in question (Nos. 30, 31, 32 and 33 North river,) were used and occupied by the defendants, the Erie Railway Company. The bulkhead between piers 30 and 31 was occupied by the sheds, gates, buildings and fences of the defendants ; a large shed covered the whole bulkhead between piers 30 and 31, with gates and fences, the whole permanently affixed to the bulkhead; a platform, for the *368reception of freight had been extended beyond the bulkhead a distance of twenty-five feet. On the bulkhead, between piers 31 and 32, the defendants had placed and kept a building used as their freight office. On the bulkhead, between piers 32 and 33, the defendants occupied a small office for a delivery clerk. The Board of Commissioners of Pilots, whose duty it is to see that the law regulating the harbor is enforced, notified the defendants to remove these structures, by a written notice in the following words and figures:

*“New York, November*28, 1865.

At a regular meeting of the Board of Commissioners of Pilots, held this day at their office, Eo. 69 South street, in the city of Eew York, the following was, on motion, adopted:

*Whereas,*The bulkheads herein described are incumbered and their' free use interfered with as follows, viz.: The bulkheads between piers Eos. 30 and 31, 31 and 32, and 32 and 33, Eorth river, by buildings," sheds, gates and fences, owned by the 6 Erie Eailway Company,’ * * * *And whereas,*in the judgment of this board the said incumbrances exist and are maintained in violation of the provisions of section eight of the act of the legislature, entitled ‘An act to establish regulations for the port of Eew York,’ passed April 16,1857, and the acts amendatory thereof, and the same ought to be removed;

*Therefore, resolved,*That the person or persons severally placing or keeping the said incumbrances upon the said bulkheads be notified to remove the same within twenty-four hours after such notice, and that such notice be given by serving upon him or them respectively a copy of this resolution, attested by the president and secretary of this board. A true copy from the minutes,

Attest: Bussell Sturgis, *President.*

F. Perkins, *Secretary.*

To the ‘ Erie Eailway Company: ’

Please to take notice that, pursuant to the provisions of section 8 of the act of the legislature, entitled ‘An act to *369establish regulations for the port of New York,’ passed April 15, 1857, (as amended by section 5 of chapter 226 of the Session Laws of 1858,) and of the resolution of the Board of Commissioners of Pilots, a copy of which is herewith served upon you, you are hereby notified and required to remove from the bulkheads between piers Nos. 30 and 31, 31 and 32, and 32 and 33, North river, the buildings, sheds, gates and fences, which are now there, placed or kept there by you, within twenty-four hours after service on you of this notice. And if you fail to comply with this notice, you will be liable to the penalty prescribed by law.

New York, Nov’r 28th, 1865.

By order of the Board of Commissioners of Pilots.

Russell Sturgis, President.”

This notice was not complied with, and the buildings remained 107 days from the service of the notice.

All the piers in question, with the adjacent bulkheads, were *public*piers and bulkheads *(i. e.*piers and bulkheads belonging to the córporation of New York,) qnd all the rights of the defendants in relation to their occupancy; were derived from leases made by the mayor, aldermen and commonalty of the city of New York, (dated April 25, 1865,) and by which, only the wharfage to be derived from the same and the right to collect such wharfage is granted, *subject*to the laws of the state of New York.

The defendants’ counsel offered evidence tending to show that the erections complained of did not obstruct or hinder commercial business, or the convenience of transacting it, which was ruled out, and the defendants’ counsel excepted.

The introduction of the notice before mentioned in evidence was objected to by defendants’ counsel, on the grounds, (1.) It was not served as directed by the act. (2.) It is not *a*notice that these erections are obstructions, or a notice to remove any *obstructions,*but, if any thing, is a notice about, and to remove *incumbrances.*(3.) To make it valid and effectual, it should have complied with the act of May 12, *3701865, by containing a copy of the section under or in pur- ■ suance of which the notice was given. The judge overruled each of those objections, and to each of said rulings the counsel for the defendant separately excepted, and the notice was read in evidence.

The defendants’ counsel moved to dismiss the complaint on the grounds:

1. That possession of neither of the bulkheads had been shown in the defendants.

2. That it had not been shown, that the defendants placed, kept or erected the alleged incumbrance or obstruction.

3. That it had not been shown, that what was noticed to be removed was any obstruction, or that it interfered with the free use of the piers or bulkheads.

Each of these motions was denied, and to the ruling, as to each, the defendants’ counsel separately excepted.

The defendants’ counsel asked the court to instruct the jury:

1. That a recovery could not be had for a greater number of days than it appeared the defendants kept or continued all of the erections or incumbrances charged in the complaint. The court declined so to rule. The defendants’ counsel excepted to the refusal of the court so to instruct the jury.

2. That the penalties could not extend over a longer period than it appeared the defendant occupied all the three bulkheads mentioned in the notice and complaint. The court declined so to charge. The defendants’ counsel excepted to the refusal.

3. That the defendants were not responsible for the erection on the bulkhead between piers 32 and 33, north of the middle line between these piers. The court so charged the jury.

4. That the notice requiring the defendants to remove all the erections on the bulkhead, between piers 32 and 33, as well as between the other piers, and the company not having erected or kept the building on the north half of the *371bulkhead, between piers 32 and 33, the notice was excessive and ineffectual as a "basis for penalties; the company was not bound to conform to the whole of it, and it cannot be construed to bind them as to any part, that part not being separated in the notice from the residue. The court declined so to charge. The defendant’s counsel excepted to the refusal so to instruct the jury.

5. That a conditional notice is not valid as a basis of penalty; and this notice, by devolving upon the defendants to decide what erection they made or kept, was not an absolute notice as to any portion of the erections, but was conditional as to all, and, therefore, invalid. The court declined so to charge. The defendants’ counsel excepted to the refusal so to rule.

6. That the plaintiffs were not entitled to recover penalties for the several Sundays embraced in the period, under which the penalties embraced in the verdict should extend. The court refused so to instruct the jury, and to such refusal the counsel for the defendants duly excepted.

The court instructed the jury, that upon the undisputed facts of the case, the defendants were liable to the penalty of twenty-five dollars per day for every day during which the fences and gates on the three portions of the bulkheads and piers, occupied by the defendants, were kept there, after notice from the plaintiffs to remove the same, and directed a verdict for the plaintiffs for penalties for 107 days, from December 2, 1864, to March 20, 1865, making $2675.

The defendants’ counsel objected and excepted to the said direction of the court.

The jury, under such direction of the court, found a verdict for the plaintiffs for the penalties at $25 per day, for 107 days, being $2675.

The defendants’ exceptions were ordered to be heard at the general term, and judgment was suspended.

*Wm. Allen Butler,*for the plaintiffs.

I. The structures in question- being built upon public *372bulkheads in the navigable waters of the harbor of Hew York, without any authority of law, were in violation of the provisions of section 8, of the act of April 16, 1857, establishing regulations for the port of Hew York, (as amended) and being unauthorized by law, constituted a public nuisance, irrespective of any question of public convenience or inconvenience. *(Act April*16, 1857; *Laws*1857, *vol.*2, *pp.*487, 488. *Id.*15, *1858; Laws*1858, *p.*363. *Fowler*v. *Saunders, Cro. Jac.*446. *The King*v. *Russell,*6 *B. & C.*566. *The King*v. *Carlile,*6 *Carr. & Payne,*636. *The King*v. *Ward,*4 *Ad. & E.*384. *Hart*v. *The Mayor of Albany,*9 *Wend.*571. *The People*v. *Cunningham,*1 *Denio*524. *Davis*v. *The Mayor of New York,*4 *Kern.*506; and see *p.*525, arad eases *collected there. The People*v. Vand*erbilt,*38 *Barb.*282. Same case, 26 N. Y. Rep. 287. The *Board of Commissioners of Pilots*v. *Clark,*33 id. 251.)

1. The free and unobstructed use of the piers and bulkheads in the city of Hew York, for the general purposes of trade and commerce, is matter of public right, which can only be abridged by act of the legislature of the state.

2. Without special license or authority conferred, directly or indirectly, by act of the legislature, no private person or corporation has any right to interfere with the free use of a pier or bulkhead, or to obstruct free' passage over it by all persons, or access to it by all vessels lawfully engaged in trade or commerce, and having occasion to use it for the purpose of business.

3. Even though the structures in question may be advantageous to the shippers of goods by the defendants’ railroad line, and thus beneficial to *apart of the public,*this forms no justification for placing or keeping them on the bulkheads, inasmuch as they deprive the rest of the public of the *free use*of the bulkheads, which they are lawfully entitled to enjoy, as to which the legislature have given no special privileges to the lessees. See cases cited above, and also as to the public right in the piers and bulkheads in the port of Hew York, and the power of the legislature to regulate *373their use. *(Act April*17, 1784, *Jones and Varick, p.*125, § 8. *Act March*31, 1801, *Davies’ Laws relating to city of N. Y. p.*400, § 9. *Act April*19, 1813, *id. p.*559, § 235. *Act April*19, 1830, *id. p.*705, § 1. *Act April*16, 1857, *Laws*1857, *vol.*2, *p.*487, § 8. *Act April*15, 1858, *Laws*1858, *p.*363, § 5. *Vanderbilt*v. *Adams,*7 *Cowen,*349.);

II. There was no ground for a dismissal of the complaint, and the motion to -dismiss was properly denied.

1st. The placing or keeping of the alleged obstructions by the defendants was sufficiently proved; in the absence of an express authorization by law the structures complained of were illegal, and the fact of their continued and permanent existence for the convenience of the defendants, and the transaction of their business, was clear proof of an obstruction to the free use of the bulkhead, within the plain meaning of the law.

2d. The objections as to the sufficiency of the proof were also obviated by the subsequent evidence introduced.

m. There was no error in the ruling at the trial in respect to the sufficiency of the notice given by the plaintiffs requiring the defendants to remove the obstructions.

1st. The *first*objection, as to the service of the notice, was cured by the admission.

2d. The notice being intended by the statute to prevent *incumbrances*of the piers and bulkheads by *obstructions,*&c. was sufficiently explicit in directing the removal of “incumbrances and besides, it specified “ buildings,” &c.

3d. The act of May 12, 1865, providing for the making effectual of a service of notice given by the president of the board, without previous direction of the board, does not apply to cases when the notice is originally the act of the board, and does not in any way limit, restrain or vary the terms-or provisions of section 8 of the act of 1857.

IV". There was no error in the ruling of the court at the trial in refusing to charge the several propositions submitted by the defendants’ counsel in the propositions numbered respectively 1, 2, 4, 5 and 6.

*3741st. *As to request No.*1. The defendants were liable to the penalty prescribed by the statute so long as they failed to comply with the notice which, in accordance with the terms of the law, directed them to remove *all the buildings, sheds, gates and fences placed or kept by them*on the bulkheads in question. A partial compliance with the notice would not discharge the defendants from liability, and the answer of the defendants expressly admits and avers that they did nothing by reason of any notice relative to removing any thing referred to in the complaint.

2d. *As to request No.*2. The length of time during which the defendants occupied the bulkheads respectively, is immaterial so long as they failed to comply with the notice, and kept the obstructions on either of the bulkheads.

3d. *.As to request No.*4. This was based on a misstatement of the contents of the notice, which did not require the defendants to remove all the erections on the bulkhead between piers 32 and 33, as well as between the other piers, but only those placed or kept there by the defendants. The fact that there was one building on one of the bulkheads not' placed or kept there by the defendants, in respect to which no notice is given, and which is not included in the diagram showing the erections complained of, is no excuse for the defendants’ failure to remove those which they did place or keep on the premises in question.

4th. *As to request No. 5.*The notice was not in any sense “ conditional.” The defendants were keeping on all the bulkheads specified certain buildings, sheds, gates and fences for the use of their own business, and in clear’violation of the law. The notice directed the removal of all of the buildings, sheds, gates and fences placed or kept there by the defendants, and was limited to such. It was operative without qualification or condition in respect to all the obstructions maintained by the defendants.

5th. As *to the sixth request.*The statute does not except Sundays, and there is no law for substituting “ week days” *375for “days.” The defendants could have stopped the accruing of the penalties on any day, had they they complied with the notice.

D. *B. Baton,*for the defendants.

I. The plaintiff's are authorized to take action in only two cases: where loose articles are piled on a pier or bulkhead, so as to obstruct its use; and when any fixed erections constitute an obstruction. The complaint in this case is only of fixed erections on bulkheads.

1. Before the board is authorized to take any action, by reason of such erections, it must appear that such erections were an “obstruction,” which “incumbered” or interfered with the free use of the bulkheads. This much the section clearly implies, if it does not specifically state. Without so far refining as to claim that they must be not only “obstructions,” but also such obstructions as “ incumber ” a bulkhead, or interfere with its free use, it is very clear that *something must be obstructed;*and there can hardly be a doubt, that it must appear that the proper use of the bulkhead, *for commercial purposes,*must be obstructed, or the plaintiffs have neither right nor duty to take any action. In the absence of such obstruction, action by the board would be needless, as well as vexatious and illegal. It cannot require every erection to be removed. The erection must amount to an obstruction, or the board has nothing to do with it. If there really be obstructions, which are not removed within twenty-four hours after notice, the plaintiffs may sue for and recover a penalty of $25 per day during the time they “ remain on such bulkhead.”

2. The plaintiffs proceeded on that theory of this section ; for what was ordered removed, is in the complaint charged to be an “obstruction,” &c. “whereby said bulkheads were incumbered, and their free use interfered with,” &c. and it is charged that said obstructions were not removed within twenty-four hours. Issue is taken on these allegations, and the question is directly raised whether *376what was put, or was on the bulkheads, was or not an *“*obstruction ” which incumbered the free use of the bulkheads.

II. It cannot be maintained that the question, whether what was erected or maintained was an “ obstruction,” is a question solely referred to the board, or upon which it1 has finally passed, for these reasons:

1. The section does not, in any way, indicate or imply that such question is referred to the discretion or judgment of the board. The powers of the board being in derogation of the common law rights, and under special statute, are not to be enlarged by implication, but must be strictly construed. This rule has been strictly applied in a similar case. *(Board of Commissioners of Pilots v.*Vanderbilt, 31 *N.*Y. *Rep. 265. Gilchrist*v. *Comfort,*34 *id.*235.)

2. The complaint has tendered the issue, which the defendants have accepted, whether the erections complained of are “ obstructions,” &c. but nowhere alleges, nor is there any proof, that the board did, or undertook to decide that the said alleged erections were obstructions in any sense.

3. The notice served, showing the proceedings of the board, is so far from disclosing any action of the board in the nature of deciding'said erections to be “ obstructions,” that it *does not any where contain the word*“ *obstructions,” or its equivalent.*

III. The court must pass on the questions as to there being any “obstruction,” or this board'may order any thing whatever about a bulkhead removed, regardless of its being an obstruction to, any body or any thing, and without even the responsibility of so declaring it, and *there would be no possible redress or defense available in the courts.*The notice authorized to be given by the act is not a ^ notice to remove an “ incumbrance ” merely, (for that may mean something less than what obstructs,) but to remove an “ obstruction ” only. ■ The notice proved was objected to, and exception to its admission in evidence *377taken, because it was not a notice relative to any actual or even alleged “ obstruction.”

IV. If our views are correct as to the interpretation of the section and the issues to be tried, then no cause of action is made out, for the reason that the plaintiffs made no proof of any “ obstruction ” of any thing, in any sense of that term; and it was error to exclude the defendants’ several offers to prove that all that was complained of was no obstruction whatever, &c. &c. and the exceptions were well taken. These views were urged on the trial, in a motion to dismiss the complaint.

On the plaintiffs’ theory they may recover $25 of the defendants per day, because they have not removed, what the plaintiffs have not decided to be an obstruction; what the plaintiffs have no authority to make any final decision upon, and what the defendants are ready to prove is not 'an obstruction within the statute, nor. any hindrance, but a great convenience to commerce.

V. The notice served, not pointing out any thing as an obstruction, was not within the statute, and of no effect.

1. No suit can be maintained except for failure to remove, within .twenty-four hours, “ obstructions,” which the party complained of has been duly “ notified,” since the act, to remove. As severe penal consequences follow a failure, the *notice ■must be*certain, *specific and absolute.*If conditional" or uncertain, it can have no effect. It is the *notice*served, and not the alleged action of the board, that is decisive. *(See*31 *N. Y. Rep.*269.)

2. It Avas not absolute or certain, because it left the party notified to decide Avhat it “placed or kept ” on'the bulkheads. It at most only required the removal of such “buildings, gates, sheds and fences,” as it might decide they “ kept or placed.” There can be no failure of compliance with such a notice proved, except by proof that the party notified decided, that it did place or keep said buildings. 8

*378VI. If the notice be construed to be absolute and certain, it must mean that the defendants are to remove *dll*the buildings, sheds, gates and fences there were *on all the bulkheads*between pier 30 and pier 33. There is no intimation that *less than all*are an incumbrance or an obstruction, and a removal of *less than all*would not comply with the notice. In fact, the whole together are treated as one violation and one incumbrance, for which one penalty is incurred. The evidence showed that the defendants only had possession or control to the middle of the bulkhead between piers 32 and 33, and never occupied any portion of the bulkhead north, of the middle line between piers 32 and 33. It also appeared that on this north half of the bulkhead, between piers 32 and 33, there was a building, in respect of which the defendants had neither control nor possession. Therefore the notice, in requiring the defendants to remove this north end building—that is, the incumbrances on bulkhead -between piers 32 and 33—was too comprehensive, and could not be complied with, and was hence void.

VII. The defendants cannot be held liable for erections they did not make, or change, or o.wn.

1. It appeared, as already shown, that the only rights of the defendants to the piers or bulkheads are by lease from the city, and it was proved that the defendants were a recent corporation, created on the 25th June, 1861, after the failure of the old New York and Erie Railroad Company, and that the erections complained of (most of them, at least) are now as they were .before the defendants had.an existence, the defendants having done nothing to them.

2. This leased property the defendants allowed to remain in the condition they found it in 1861, when they leased it, and they were neither guilty of “ placing or keeping ” the erections there, within the meaning of section ,8. The leases bound them to -return the property to the corporation at the close of the leases. The act does not authorize them to destroy, under such a notice, what they hired, and were bound to surrender. The words “ placing and keeping ” *379are not applicable to the mere negative conduct of allowing leased buildings to remain—to mere forbearance to commit waste and destruction of leased property.

3. There is no proof that the defendants “kept,” *or even used, the erections.*Had the defendants erected the buildings, the case would have been different. *(Board of Commissioners, &c.*v. *Clark,*33 *N. Y. Rep.*251.)

VHI. We claim that the days for which the penalty is given, means secular- days only, and do not include Sundays ; and that the judge erroneously refused to exclude Sundays as days for which the penalty should be given. The law does not contemplate that commercial business will be transacted, at the bulkheads on Sundays; and hence it cannot be held to contemplate that a penalty will be incurred for “obstructing” or hindering such business on Sundays ; and to sustain the verdict for Sunday penalties -is as unsound in legal theory and principle as it is unfounded on any public inconvenience, or actual business transaction.

IX. This pretended notice was utterly invalid, for not containing *a copy*of the section 8 of the law on which it is founded, as *made necessary*by the section 1 of the 712th chapter of the Laws of 1865. Such penal notices are strictly construed, (31 *N. Y. Rep.*269;) and this statute was enacted at the next succeeding session of the legislature after such decision. The policy of both is apparent to give to the party, who is to be so punished for disobedience, a clear, direct and prompt reference to the law, for he has *not even twenty-four hours*to consult a lawyer.

. Robertson, Ch. J.

The admission of the defendants on the trial that they “ held the occupancy of the space ” between the south side of one pier and the middle of a bulkhead between two piers beyond it, including the intervening bulkheads, by leases from the corporation of the city-of Hew York, which were read in evidence, virtually acknowledged an actual occupation of the bulkheads them*380selves. Indeed the defendants actually claimed that they had no right to remove the incumbrances complained of, because they had covenanted to surrender the same as being part of the *demised premises.*So far from giving any right to the soil, such leases provide against receiving any compensation “ for the occupation of the *top or surface*of the piers for any purpose.” They were, in fact, a mere demise of the right of wharfage as an incorporeal hereditament. They, therefore, were not justifiable in occupying such *space*under such demises. *(See Commissioners of Pilots*v. *Clark et al. 33 N. Y. Rep.*251, 264, *per Denio, Ch. J.)*

In addition to this, admission, the agent of the plaintiffs (Marsten) testified in substance, that the bulkhead between piers 30 and 31, which ran from pier to pier on the shore line, was *occupied,*by *sheds, gates, buildings and fences*by the defendants, and a large shed covered the whole space between such piers. There were gates, fences and a building, which were *permanently affixed to the bulkhead and extended across the entire width;*also a platform built beyond the bulkhead projecting iqto the water, averaging in breadth twenty-five feet from the string piece of the bulkhead, which covered the whole of the latter from pier to pier. The fence extended from the north side of pier 30 to the south side of pier 31. It was all inclosed by gates and fences. A building stood on the bulkhead between piers 31 and 32, close to the string piece, about six feet square, which was occupied by the defendants as a freight office. The space between a continuance of the lines of piers 30 and 31, extending from the outer edge of the bulkhead between them, to a line at some distance therefrom, and running parallel therewith along "Wqst street, appeared by a diagram exhibited on the trial, (proved to be correct,) to be inclosed, and, as was testified to, by a fence, interrupted only by six gates. On the "north side of pier 32, only a small office, six feet by nine in size, was occupied by the defendants as a delivery office, the use of which was discontinued, and it was removed to the south side of the pier.

*381The first question of law presented is, if such sheds, buildings, gates and fences upon the bulkheads in question were as either *loose materials, or built upon and affixed to them, obstructions incumbering*such bulkheads, or *interfering with their free use*within the meaning of the 8th section of the statute of 1857, *(N. Y. Sess. L.*1857, *p.*487,) as amended by the 5th section of the act of 1858, *(N. Y. Sess. L.*1858, *p.*363,) the defendants are liable for not removing them, because they kept them there within the intent of such amended provision. The statute gives the plaintiffs the option to proceed either against those who place or those who *keep*obstructions upon piers or bulkheads, whom it makes equally amenable, since the former cannot always be so readily discovered. Eor the same reason, where there was a difficulty of discovering both, the plaintiffs had a right to remove merchandise. The defendants used and occupied the erections in question as their own, and they may, therefore, be fairly said to have *kept*them on the bulkheads within the meaning of the statute. As they formed no part of the demised premises, the defendants were not responsible for them to the owners. They might have removed them as incumbrances of the highway, or interfering with their right of wharfage. Their conduct was sufficient to have charged them in an action for a nuisance as continuing it. Their ownership or hiring them was immaterial; they may have.taken possession of such incumbrances tortiously ; they acted as their owners, and are,, therefore, liable for *keeping*them there.

The offense punishable under the statute is an interfering with a *free*use of a bulkhead, which is as general as it can be, since it is not limited either as to mode or persons. Nothing is said of an obstruction, as interfering either with *commercial*uses, or purposes of commerce or access to shipping or transaction of business. Indeed, no merchandise which incumbers the bulkhead is permitted by the statute to remain over twenty-four hours, after the notice it provides for is given. Bulkheads are part of the highway, and *382entitled to be traveled over in the same way as any other part. The facility of passing round them, or leaving the other part unblocked up, does not affect the question. In *Davis*v. *Mayor, &c. of New York,*(14 *N. Y. Rep.*524,) Chief Justice Denio lays down the rule that a “ permanent, habitual obstruction in a public street or highway is an indictable nuisance, *although there he room left for carriages to pass.”*Even a benefit to the community by such an obstruction does not justify any interference with the ordinary rights of the public. *(Commissioners of Pilots*v. *Clark et al.*33 *N. Y. Rep.*265. *King*v. *Ward, 4 Ad. & El.*384. *King*V. *Russell,*6 *Barn. & Cress.*566.) The statute evidently intended to commit to the plaintiffs the guardianship, of so much of the highways as bordered the water, against all nuisances by incumbrances, and not to separate those engaged in' commerce from the rest of the community, so as to have their interests alone protected. And it used the proper language to authorize a prosecution for all such nuisances. As it was impossible from the very nature of the erections in question to prove that they did not interfere with the *free*use of the wharves, all questions attempting it put to witnesses were properly excluded. The ruling of Chief Justice Denio, in the case of the *Commissioners of Pilots*v. *Clark, (ubi*supra, *pp.*265, 266,) before referred to, that the judge (presiding on the trial) might properly have charged that a fence erected and placed in a similar manner to that in question, was in itself an incumbrance of the pier, warranted a similar course in this case. The judge who presided was therefore right in withdrawing all consideration of the question of fact from the jury.

It was contended, however, that the defendants were not liable because no proper notice within the meaning of the statute in question had ever been given to them to remove the erections complained of. The provision in question requires the plaintiffs to *notify*either the persons who had *placed,*or those who *kept merchandise*or *other obstructions*on a bulkhead which incumbered it or interfered with its free *383use to remove such *obstruction;*meaning, of course, the article obstructing, and not merely a removal of the effect produced by it. The notice actually given was “to remove from the *bulkheads*between piers Nos. 30 and 31, and Nos. 31 and 32, and Nos. 32 and 33 North river, the *buildings, sheds, gates and fences,*which are now there *placed or kept*by the defendants. The objections taken to this notice are: *First.*That it does not undertake to pronounce the articles enumerated an obstruction. *Secondly.*That if it leaves the defendants to determine what articles they had *placed or kept*on the bulkheads, it is not a sufficient description; and, *Lastly,*if intended to require that all the articles on the bulkhead should be removed, it included a building between piers 32 and 33, neither placed nor kept there by the defendants.

These objections are based on the idea that the defendants are entitled to retain every thing which they have put or kept on the bulkheads in question, whether its free use is thereby obstructed or not; unless the notice to remove extends to, and does not include any more than exactly, what they have so put or kept there. Upon that principle a mistake of a single article, either as to its being put or kept by the party notified on the bulkhead, or being part of the obstruction, would be fatal, and the public highway would remain obstructed without the power of punishing under the statute. There might be some ground for such doctrines, if the articles to be removed were innocently on the bulkhead, and only became noxious by their being kept there contrary to the requisition, but the penalty is given, not for disobeying the orders of the plaintiffs, but, in the words of the statute, for “ a failure to comply with such notice, *and remove such obstruction.”*The offending party receives no injury by being notified to remove too much; he is to be supposed to know whether he has violated the law already, and the notice is neither an accusation nor indictment; nor does it form the basis of a legal proceeding. It is true, it is a condition precedent to a right to recover, but is a simple warning to remove a nuisance within twenty-*384four hours, or he subject to the statutory penalty. The plaintiffs had no power to determine what was an *obstruction,*and what was not, any more than to decide whether the defendants created it or not. After such warning, both parties acted at their peril; the defendants in omitting to remove the articles complained of, the plaintiffs in bringing an action for the penalty, if they did not. What was to be removed was described with sufficient particularity to enable the defendants to know what was intended. They were then bound to decide for themselves, whether they were responsible for its being an obstruction. The requisition by such a notice, differs entirely from that regulated by the second section of the statute of 1860, involved in the case of *Commissioners of Pilots*v. *Vanderbilt,*(31 N. *Y. Rep.*265.) The notice under that act, needed a previous determination by *the plaintiffs,*as a board acting judicially, of the time within which a supposed encroachment in the harbor of Eew York should be removed. The statutes of 1857 and 1858, prescribe the time for the removal of the offending articles after notice, until the lapse of which no penalty begins to be *incurred;*so that nothing is left to the discretion of any one. They, moreover, in addition to a notice merely calling attention to the nuisance as in the statute of I860,'explicitly prescribe that there should be a notification or warning to remove it. Such warning is, of course, futile and void as to articles, which "form no part of any obstructions, or for whose maintenance as part of one, the defendants are not responsible. But if they are responsible for the- presence of some of the articles on the bulkhead, which they are warned to remove, and those articles obstruct the free use of such bulkhead, I cannot perceive on what principle their failure to -remove them after notice, should not make them liable, although they have in the written document containing such notice been also required to remove those which are not obstructions, or for whose presence on the bulkhead they are not responsible. The statute, besides, does not prescribe the form of the notice, otherwise than *385that it shall notify the person served with it to remove the designated obstruction. Whatever else, therefore, is in it is immaterial. Nor is there any objection to combining notices to remove obstructions on different bulkheads in one manuscript. In this case the defendants were guilty of incumbering three different bulkheads, and liable, therefore, to three sets of penalties, and were notified to remove such incumbrances on each bulkhead. The plaintiffs, however, thought proper only to claim one penalty, and had a right to select therefore, any one of the failures of the defendants to remove, what they had been warned to remove, as the foundation of the penalty. The notice did not serve to make the defendants more or less, the authors or maintainors of the obstruction complained of; they knew whether they were so, and were not required to be governed by it, in determining' whether they were or not. Whatever the present notice therefore may contain, beyond the designation of what was an obstruction, for which the plaintiffs considered the defendants responsible, and for which they were so in fact, a notification to remove it was surplusage, and does not vitiate the intended effect' of the notice as a warning. But, in fact, it actually limits the articles, which the defendants are required to remove, to those *placed or kept*by them on the bulkheads, enumerated therein, which they are to be presumed to know; and does not require them to remove all the articles on such bulkheads.

The necessity of serving with the notice given a copy of the law, under the first section of the statute of 1865, *(N. Y.*Sess. *L.*1865, *ch.*712,) is confined to notices served by the president of the plaintiffs, without their previous' authority. In this case, the.plaintiffs themselves authorized the notice.

The law makes no distinction as to the days of the week, for which the penalty is to accrue. A free use of a bulkhead may be as necessary on Sunday as any other day. The plaintiffs were, therefore, entitled to recover for the *386full number of days, since the twenty-four hours after the notice were up, without regard to Sundays.

These considerations dispose of all the requests to charge, as well as the exception to the charge. No error having been committed on the trial, the exceptions must be overruled, and judgment given for the plaintiff for the verdict, with costs.

Garvin, J. concurred.

McCunn, J. (dissenting.)

This action was brought to recover from the defendants a penalty of $25 per day, for 107 days, under a statute passed in 1857 and amended in 1858, for neglect in conforming to a notice of the plaintiffs to remove certain obstructions on bulkheads between piers 30 and 31, 31 and'32, and 32 and 33, in the city of New York, in the Hudson river, for the period between December 2, 1864, and March 20, 1865. The most material question in this case is whether the erections complained of in the complaint were “ *obstructions ”*within the meaning of the act; because, if they were not obstructions, the Board of Commissioners of Pilots have nothing to do with them. The law fixes the penalty upon the defendants by reason of their being so, if they do not remove them when notified; and if the subject of complaint be not obstructions of commerce, then no penalty can attach. No one will pretend that every erection on the piers of this great commercial city, for the purpose of facilitating commerce, such as derrick cranes, sheds, and the like, are obstructions to commerce, unless they impede its operations or hinder or injure it in some way or other.

It cannot be contended that sheds and coverings placed there for the express purpose of' protecting perishable products brought hither by our merchant marine from all parts of the world for the use and comfort of our fellow-citizens, are obstructions or incumbrances, within the meaning of the pilot law; and if the Board of Pilot Commissioners,' or *387any other body, arbitrarily pronounce such sheds and coverings obstructions and incumbrances to commerce, without the aid of a court, especially where they are designed for protection and not for hindrance, such a power would be tyrannical, vexatious and unjust in the extreme.

The .court, at special term, therefore erred in not allowing the defendants to show before the jury that the grievances complained of were not incumbrances or obstructions.

But not only cannot the Board of Pilot Commissioners take upon themselves tp say what are and what are not obstructions, but the act and the section of the law under which they claim to recover, fail to indicate or imply that any such question is referred to the discretion or judgment of the board. Moreover, it has been held by this court, and affirmed by the Court of Appeals, in the case of the *Board bf Commissioners of Pilots*v. *Vanderbilt*(31 *N. Y. Rep.*265,) that the powers of the board, being in derogation of the common law, and, under special statute, cannot be enlarged by implication, but must be strictly construed.

The complaint does not allege, nor does the notice say, nor can I find any proof in the ease, that the board does undertake to decide that the alleged erections were obstructions. •

It was, therefore, error to exclude the defendants’ several offers to prove that the erections complained of were no obstructions or hindrance.

The notice given by the board was offered in evidence, and objected to and allowed, and an exception taken. This brings up fully the question whether that notice was such an one as is required by the act. I think it was not. The notice must be certain and specific; if conditional or uncertain, it can have no effect, because it is the notice and not the action of the board that is decisive. *(See case cited above. Also Gilchrist*v. *Comfort,*34 N. *Y. Rep.*285.)

It appears that there are a large number of buildings, gates, sheds, fences and fenders kept or placed on these bulkheads or docks, and there is no intimation or preten*388sion that all should not be removed. Now, the evidence shows that the defendants had possession or control of only a portion of the obstructions complained of. Therefore, the notice, in requiring the defendants to remove all, was too comprehensive, and could not be complied with, and was therefore void.

Not only was the notice imperfect in this respect, but the pilot commissioners should have sent with their notice a copy of section eight of the law on which the notice was founded. This is absolutely required by section 1, of chapter 712, of the laws of 1865.

I have shown how strictly penal statutes are construed, and this act of 1865 is in the same spirit, requiring a notice to “ contain a copy of the section under or in pursuance of which such notice is given,” and was enacted for the express purpose of thoroughly informing parties who are complained of for violating these penal laws what they contain.

The policy of both is apparent. It is to give to the party who is to be so punished for disobedience a clear, direct and prompt reference to the law.

The Court of Appeals says : “ The person offending is -to' be notified,” &c. He is to be notified to “ remove the obstructions, because the penally of $25 attaches every day.” (31 N. *Y. Rep.*269.) And then the legislature added the reasonable condition that the notice shall afford the offending party a copy of the law he is charged to be violating.

But this notice does not contain any copy of any section, and is hence of no effect.

For these reasons, judgment should be ordered for the defendants, with costs.