
    *Radway et al. v. Briggs and another.
    
      Mesponsibilily of lessees of wharves in New York
    
    The right to collect wharfage, in New York, carries with it the correlative duty of keeping the wharf in repair; and this dnty is imposed upon a lessee of the corporation, who is liable for an injury sustained, in consequence of his neglect to repair.
    
    Appeal from the general term of the Court of Com» mon Pleas for the city and county of New York, where a judgment of nonsuit, entered upon the trial, had been affirmed.
    This was an action by John Radway and others against Jeremiah Briggs and Nathaniel Briggs, the lessees of one of the public piers in the city of New York, to recover the value of a horse and cart, and' a load of merchandise, lost by the plaintiffs, in consequence, as was alleged, of the neglect of the defendants to keep the said pier in proper repair.
    The lease from the corporation of New York to the defendants, of the pier in quéstion, bearing date the 14th March 1855, 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 first day of May then ensuing. It then proceeded to convey to the defendants, “their heirs and assigns, all and singular the wharfage which shall or may arise, acprue or become due, between May 1st, 1855, and May 1st, 1860, for the use -and Occupation, by vessels of more than five tons burden, of any of the wharves, slips, piers or bulkheads, belpnging 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 wharf-age end 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 the said parties of the first part, or used for ferry purposes.”
    The defendants covenanted, “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.” They 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. - 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.
    It was shown on the trial, that in March 1855, the plaintiffs’ carman drove upon the pier in question, with a load of merchandise, to be delivered on board of a ' steamer there lying; that while there, the horse became unmanageable, backed into the river, and was drowned. The plaintiffs 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 not more than two inches above the- surface of the pier.
    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 wei’e in possession of the premises in question, at the time of the occurrence. The court granted the motion, and the plaintiffs excepted. The judgment of nonsuit was subsequently affirmed at general term, and this appeal was taken.
    
      Blade, for the appellants.
    
      Benedict and Burr, for the respondents.
    
      
       Swords v. Edgar, 59 N. Y. 28; Macauley v. New York, 67 Ibid. 602.
    
   *Fullerton, J.

It was not necessary for the plaintiffs to prove that the defendants were in the actual possession of the pier, to enable them to recover in this case. They were not entitled to the exclusive possession, by 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. 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. (City of New York v. 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 wharf-age 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; on 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, *n common with them, except the right *to 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 term, in as good condition as 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 wharf-age (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 v. Hemmingway, 7 Conn. 186, 202.)

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.

It 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 v. Camp, 3 Conn. 291; Doe v. Marston, 3 Wend. 149; Bailey v. Culverwell, 8 B. & Cres. 448; Townsend v. Tickell, 3 B. & 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. (Barton v. Barclay, 5 Mo. & Payne 785; Mayor of Albany v. Coniff, 2 Cow. 165; Henley v. Mayor of Lyme, 3 Ad. & Ellis 77; Brett v. Cumberland, Cro. Jac. 399, 521; 4 Cush. 277.) The judgment should be reversed, and a new trial ordered.

Judgment reversed, and new trial awarded.  