The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-12-07
COURT OF COMMON PLEAS

COURT OF COn0Oh fLBAo.
Hon. Judges Ingraham, DAILY and Brady
DEC. 5.-Joseph Tinkam and others us. William
Iupseott and oshers-Judge Ingraham (6rst judge
delivered the following opinion, which was concur
red in by Judges DAILY and Brady ......
Jnxraham, F. 1.-THE plaintiffs sued the defend
ants for services rendered by them in examining the
condition of vessel and her cargo, belonging TO the
defendants, which had arrived at the port of New
York in a damaged condition, and for q certificate
in writing given by the plaintiffs Of the result of their
examination The answer denies that the plaintiffs
have any lawful claim, because the making such
surveys and giving such certificates belong exclusive
" to the Port Wardens and that such acts and ser
vices rendered by the plaintiffs are contrary to the
Port Wardens' act To this answer the plain
tifs demur, on the grounds, that it shows no
defence; that the making of the surveys and
certificates does not belong exclusively to the
Port Wardens: that the said. surveys and GER
ticates were not made contrary to the statute and
There are several serious objections to the validity OF
the statute, which have been raised by the counsel
am not, however, prepared TO say that any OF them
are sufficient to warrant the Court IN declaring the
whole act to be unconstitutional. So far az the -
il construed as making the surveys compulsory, II
would interfere with the provisions of the Sth section
of article v. of the constitution OF the State which
abolished all Offices for the inspection, DC, OF any
merchandise and prohibited the creation Of any such
Office in future. That it cOntravened this provision
of the constitution is more apparent when we call to
mind that at that time there an officer entitled
Inspector Of Damaged Goods in existence, which
office fell with the adoption of the constitution and
has not been revived except in the present statute
80 far as am aware Of Bnt it is not necessary for
the purpose of this action to discuss any further the
constitutonaty OF this statute That statute which
xhoD nrt rIa nffie nf 7ch
4O5) does not make it obligatory on persons
owning vessels or cargoes to submit to
such examinations by the Port Wardens The
Port Wardens are not required by the &C: to do
anything until they are notified and requested by
party in interest So far as duties are imposed on
them when vessels are condemned and the cargoes
are to be sold it is unnecessary now to inquire, AZ
the plaintiffs claims do not relate to that branch of
the Port Wardens' business. The questions under
consideration may be briefly stated in the inquiry
whether there is in the statute anything which pre-
vents the owners of a vessel or cargo coming into
port in damaged state from employing any one
they think proper to examine into the condition of
such vessel and cargo, and reporting to them the
condition thereof The 9Th section of the act is re-
lied upon by the defendants counsel AZ creating
such prohibition. This section forbids any person
from assuming to act Port Warden, to undertake
the performance of any of the duties prescribed in
the act pertaining to the Office of Port Warden.
1t also prohibits any person from employ
ing any other than warden to perform
of surveys of goods vessels l do not understand
this section as prohibiting any person from acting
unless he assumes to act as Port warden or to do the
duties pertaining to a Port Warden. The provisions
of the section intended to prevent any other per
son from acting as Port Warden; not to prohibit
any other person from making the examinations
which the owner may think necessary for his own
safety or information. The right OF the Port Warden
to act at all depends upon a request from the party
interested-until so requested he cannot interfere
and the prohibition is only to the same extent, viz,
from assuming to act as Port Warden, or to do the
duties pertaining to the Port Warden. II the parties
interested elect to refer the amount OF damage to
another or to send their own clerk or friend to
ascertain the damage condition OF the vessel and
cargo and report TO them the result OF the examna-
ton, see nothing in the act which prohibits such
examination. II is not doing the duty of Port
Warden when such examination IL made, unless
the person making it processes to act in the charac
ter of Port Warden. Any other construction OF the
statute would deprive party OF making such exami
nations for his own protection an TO loss or lnsur
ance, or from procuring any witnesses to testify ON
these matters II litigation should ensue. II the
party in interest may have such examinations made
for the purpose Of testimony, then he may select
such persons he pleases to be such witnesses, and
the same would form no violation OF the statute I'M
der consideration. The views expressed by the
Judges Of the Superior Court In Me Port Wardens,
&c, vs. Cartwright Sanford, p. 2S6, are applca-
BILE TO this statute viz-That the statute is restrc
tive Of the common law right OF every man TO re-
pair his own vessel in his own way. or through his
own agent, and Is OF geaesal character. IL ought
not therefore, TO be extended beyond its letter.
may add that il Is more especially 70 be confined in
its operations 10 the strict letter OF the statute
where some parts of II appear to be in
violation of the constitution, or at least to
be intended az an evasion OF its provisions
In Ech the proper construction to be given to
the sixth section Ia that the acts therein prohibited
are acts done by person assuming TO act as Port
Warden and not To acts done In any other capacity.
If the stsnte is TO be construed as intended TO pro
hbt any inspection of vessel or cargo by any other
person than Port Warden, then ii IL statute pro-
yiding for compulsory inspection Of merchandise,
and falls directly within the provisions Of the consti
tuition above referred TO. II Is SAID that giving the
certificate as stated in the complaint is expressly for
hidden by the statute The sixth section only for
lids the giving of such certificate with the intent to
defeat the provisions Of the act II does not appear
from the compliant or answer that the certificate was
given for such purpose; and the illegal purpose must
be averred before the Court can presume 1t TO
exist. Ny conclusions are that the act II not
compulsory, 80 far az to prevent party from
having his goods or vessels examined for his
interest information or for the purpose Of adjust
ing losses between himself and others but that such
examination may be made by any one selected by him
self; that the Port Warden has right or authority
10 act until requested 70 do by the owner or party
interested that the act, II intended TO be compul-
sorry in all cases requiring such examination, and IL
so construed IA 10 is provisions on this branch of
the wardens duties IL so far violation OF the con
stitufion and such parts Of il cannot be sustained.
The plaintiffs are entitled 10 judgment on the de-
murrer with leave 70 defendants 10 amend their
swer on payment Of costs.
BRADY, Without expressing any opinion upon
the question whether the sixth section Of the act I'M
der consideration was designed TO prohibit the per-
Torrance If such services as were rendered by the
plaintiffs by persons other than Port Wardens. con-
cur in the Judgment of this Court-that the act 40
far a. relates 10 the surveys contemplated, is un
constitutional and void.
News from New Mexico.
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