
    The Mayor &c. of the City of Albany vs. Trowbridge and others.
    The legal interest in anchorage and wharfage, conferred upon the city of Albany by the charter of Governor Dongan, was not divested by the act of April 5th, 1893 (Sess. L. of ’23, p. 128) authorizing the construction of a basin in the city; and suits for the collection thereof must therefore be brought in the corporate name of the city.
    The sixth section of the above act is not to be so construed as to exempt the owner of a vessel from liability for wharfage, on the ground that the dock at which the vessel lay belonged to him; nor, in a suit for such wharfage, can he claim a deduction of the distributive share or interest to which he will ultimately be entitled. Where, in such suit, the defendant ottered to show an ordinance of the common council of the city, reciting that the suit was commenced without their knowledge or consent, and instructing the attorney of the corporation to forbid the further use of their name in the prosecution thereof &c.; held, inadmissible.
    
      Held further, that the fact of the corporation having assigned all their interest in the sul ject matter of the suit before it was commenced, could not be shown as a defence.
    A defence by way of recoupment of damages is inadmissible unless the party has given notice of it with his plea. Per Curiam; Cowen, J. dissenting.
    
    Debt, tried at the Albany circuit in April, 1842, before Cushman, 0. Judge. The declaration demanded the sum of $1002,50, for the wharfage of defendants’ vessels in the Albany basin during the year 1840. The defendants pleaded nil debet. On the trial, the plaintiffs’ counsel read in evidence the charter of the city of Albany granted by Governor Dongan in the reign of James II, the third section of which conferred upon the city “ all the profits, benefits and advantages that should or might accrue or arise at all times thereafter for anchorage or wharfage in the harbor, port or wharf of the said city.” The plaintiffs’ counsel also read in evidence the sixth section of “an act authorizing the construction of a basin in the city of Albany” &c., passed April 5th, 1823, (/S'ess. Laws of 1823, p. 128, 130,) as follows: “ For all vessels, boats or other craft navigating the Hudson’s river &c. and entering into the said basin, there shall be paid by the owners or masters &c. the following sums for wharfage, being double the rates now payable to the owners of the middle docks in the said city of Albany, to wit: [specifying the rates.] And the said sums shall be collected by the wharfinger or dock master, in the manner now prescribed by law; and after deducting such sum as a compensation for his services as may be agreed on, he shall pay over one half of the residue to the proprietors of the pier, in proportion to the extent of their respective rights and interests therein” &c. It appeared that, during the year 1840, the defendants’ vessels, which were engaged in the business of transportation upon the Hudson river, entered the Albany basin for the purpose of shipping and discharging their cargoes, and that the wharfage of said vessels amounted to $1002,50, according to the rates established by the act of 1823. It was further proved that while the vessels were in the basin, they lay at wharves of which the defendants were the lessees : and that they were lessees also of the lots to which the wharves were attached. The plaintiffs here rested, and the counsel for the defendants moved for a nonsuit upon the ground, 1. That they were not liable for wharfage on account of vessels lying at their own wharves; and 2. That the action could not be sustained by the plaintiffs, inasmuch as they had no interest in the suit, or in the moneys sought to be recovered. The circuit judge denied the motion, and the defendants’ counsel excepted. The defendants’ counsel then offered to prove that both the entrance to the basin and the basin itself were so filled up and obstructed by earth &c., that it was with great difficulty the basin could be entered; and that it could not be used with any benefit or advantage. The plaintiffs’ counsel objected that the evidence was inadmissible, and the circuit judge sustained the objection; whereupon the defendants’ counsel again excepted. The defendants’ counsel then offered in evidence an ordinance of the common council of the city of Albany, passed June 7th, 1841. reciting that this suit and others had been instituted without the knowledge, direction or consent of the plaintiffs, that they had no interest therein, and might be made liable for costs; and directing their attorney to forbid the further use of their corporate name in the prosecution of the suits. The defendants also offered to prove that the attorney of the corporation gave notice of this ordinance to the attorneys of the respective parties to this suit. The plaintiffs’ counsel objected to the evidence, and it was excluded. Exception. The defendants’ counsel then offered to prove that, prior to the commencement of this suit, the plaintiffs sold all their docks and wharves, and were not the owners of any docks or wharves within the bounds of the corporation,, and were not entitled to anv wharfage for vessels lying in the basin or elsewhere, but that said wharfage belonged exclusively to the owners of the docks on the shore and on the pier. Objected to and excluded. Exception.
    The testimony here closed, and the defendants’ counsel again insisted that the plaintiffs were not entitled to recover; but that if they were, the verdict should be for one half only of the sum demanded. The circuit judge held otherwise, and directed the jury to find a verdict for the whole sum, with interest. Exception. The jury rendered a verdict for the plaintiffs in conformity to the judge’s directions; and the defendants now moved for a new trial on a bill of exceptions.
    
      S. Stevens, for the defendants.
    
      I. Harris, for the plaintiffs.
   By the Court, Nelson, Ch. J.

The legal interest in anchorage and wharfage, conferred upon the city of Albany by the charter of Governor Dongan, was not divested by the act of 1823 : nor were the remedies for collecting such anchorage and wharfage affected by that act. The only material change produced by it, consisted in an increase of the rate of toll for thé purpose of compensating the pier owners, and an obligation to pay the same over to them. (See Buckbee v. Brown, 21 Wend. 110.)

It is insisted, however, that the act of 1823 does not subject the owners of vessels to wharfage, while such vessels are lying at their own docks; that instead of imposing an obligation to pay, it confers a right to receive toll for the use of the docks. The answer is, that the charge of tolls for the privilege of entering and using the basin is imposed without reference or respect to the proprietors of the pier, or, which is the same thing, the owners or lessees of the allotments thereon. These are taken into the account in the distribution of the moiety collected, but not in the imposition and collection of the tolls.

The act is express, “ that for all vessels, boats or other craft navigating the Hudson’s river &c. and entering into the said basin, there shall be paid by the owners or masters &c. the following sums for wharfage” &c. No exception is made or hinted at in favor of the owners or lessees of lots on the pier, who happen to be the owners of vessels; nor can any such exemption be admitted consistently with the principle of distributing the tolls among them as provided for in the same section. That proceeds irrespective of the ownership of the vessels entering the basin. The aggregate amount collected from all the vessels thus entering is to be distributed among the pier owners according to their respective interests therein.

This view answers also another ground taken by the defendants, viz. that the moiety of the tolls going to the pier owners should have been deducted, for the reason that as such owners they are entitled to retain the amount. They are entitled to a distributive share only. What that may be was not a proper subject of enquiry in this suit.

The evidence respecting the ordinance of the common council and the steps taken in pursuance thereof, was properly rejected. Those proceedings were probably instituted with a view to obtain indemnity against costs from the parties beneficially interested. For if the authorities of the city really intended to put an end to the suit, as being wholly unfounded and vexatious, why did they hot give a release to the defendants, or take some other decisive step to terminate the prosecution?

The mere sale and assignment of all the interest of the city in the subject matter of the suit, to third persons, in no way affects or impairs the right to collect the tolls. The legal interest still remains vested in the corporation. The tolls must still be collected by their officers; and suit's therefor must be brought in, the name of the corporation, the same as before, for the benefit of those to whom the tolls may belong. (Buckbee v. Brown, supra.)

If the defendants were entitled to any deduction by way of recoupment, in consequence of the basin being so much out of repair as seriously to diminish the beneficial use of it, notice to that effect should have been given with the plea, according to ail our cases. The notice is an essential part of the rule, and cannot be dispensed with without leading to surprise and injustice. (Reab v. McAlister., 8 Wend. 109.)

It is only under this rule that the defence offered was admissible, if at all; as the keeping of the basin in good and perfect repair is not a condition precedent to the enforcement of the remedy for the toll. The burthen of proof of non-repair, if a de ■ fence at all, lay therefore upon the defendants. The party bound to repair is subject to indictment, or to a special action on the case in favor of any one who may have sustained special damage by reason of the neglect. (The Mayor &c. of the city of N. Y. v. Furze, 3 Hill, 612: 1 Chitty’s Pl. 142, ed. 1840.)

Cowen, J.,

was of opinion, for the reasons stated by him in Barber v. Rose, (post, p. 76,) that the evidence offered byway of recoupment was admissible under the general issue.

New trial denied. 
      
      
         See Barber v. Rose, (post, p. 76,) and Van Epps v. Harrison, (ante, p. 63.)
      
     