
    
      CANNAVAN against CONKLIN.
    
      New York Common Pleas ;
    
    
      General Term, November, 1865.
    Possession.—Jurisdiction of District Court.
    One who reserves a right of possession and use in a pier, though he has parted with the title, is still liable for injuries caused by its bad condition.
    In an action for injuries arising from the defendant’s negligence in not repairing the pier in Ms possession, though some evidence be given to show that he has parted with the title to the pier, the question of title is not raised so as to oust the district or justice’s court of its jurisdiction.
    Appeal from the district court.
    Plaintiff Gerald Cannavan sued the defendants Herman Hesdorf, E. E. Conklin, James Schindler, and Charles Cawley, for damages, for loss of a horse through falling through a pier in the possession of those defendants. On the trial,- the value of the horse, and its loss through the insecure condition of the pier, was shown. The defendants Conklin and Schindler set up that they had leased the pier to Herman Hesdorf, and no longer had any possession of or liability for the pier.
    Proof was given, though the proof was conflicting, that defendants Conklin, &c., continued, under a reservation in the lease, to receive coal and ice at the pier, and kept their scales upoii it.
    The district court gave judgment against all the defendants, and the defendants E. E. Conklin, James Schindler and Charles Cowley appealed.
    
      Titus B. Eldridge, for appellants.
    
      A. H. Reavy, for respondents.
    I. It is clear from the evidence that a case has been made against the appellants. It was proved that the plaintiff owned a horse on 24th November last: that he lawfully went upon the dock, that he drove his horse over the part appearing safe, that the horse fell through the dock, and subsequently died from the injuries, that the appellants were the owners and leased the dock to ■ Hesdorf, but reserved and used that part where the horse fell; and that they knew the bad condition thereof. Nothing further was necessary to make them liable (Cosgrove v. Smith, 18 N. Y., 82).
    II. Whether the appellants had any interest in the dock at the time of the accident, is a question of fact deducible from the evidence, and this court will not disturb the finding of the justice on this ground. It is too well settled to be now questioned that where a party builds a dock, bridge, &c., the law imposes upon him an obligation to keep the same in proper repair ; and these defendants having built and placed a scale upon the dock, were bound at their peril to make, and" at all times keep, the dock as safe as it -would have been if the scale had not been constructed. The objection that the appellants were, not under ■ obligations to keep the dock in repair, was not raised on the trial, and cannot be considered here (Cosgrove v. Smith, 18 N. Y., 82).
    III. It is in proof that the horse died from the injuries, and that he was worth from two hundred to two hundred and fifty dollars. The appellant, Shindler, says that he was frequently on the dock, and that it was frequently out of repair. Hesdorf and Woods testify that they informed the appellants of the bad condition of the dock; yet they permitted the dock to remain out of repair. This is negligence, and for any loss arising therefrom they are liable.
    IV. As to the motion for a non-suit, it cannot be possible that counsel are serious in arguing that the justice erred in denying the motion. The testimony bears examination, and requires no comment or argument from counsel to satisfy this court that a case had been made out, when the plaintiff rested.
    Y. The justice had jurisdiction of this case. It is an action for damages for the loss of a horse by the wrongful neglect of the appellants. This objection, however, was not raised on the trial.
   Cardozo, J.

The case presents only one question worthy of Consideration.

The action in the cause below was to recover for the loss of a horse which was killed on the 24th of Hovember, 1864, -by falling through the pier at the. foot of Forty-third street, on the Forth river.

The death of the horse, its value, and that the loss happened by reason of the negligence of the persons in possession of the pier, in suffering it to be in a dangerous and insecure condition, are sufficiently proven. The question is, whether the appellants occupied that relation to the pier when the accident occurred, as to make them responsible for it.

On the 1st of October, 1864, the appellants entered into an agreement with their co-defendant, Hesdorf, by which they let unto him “ their pier at the foot of Forty-third street, Forth river, for the term of seven months from 1st day of October, inst., to Hay 1st, 1865, * * * * reserving to themselves the right to use the said dock, and occupy as much of the pier as their business may require.”

The pro of-establishes that the appellants, before the making of this lease, had erected upon the pier, a pair of scales for the purpose of weighing.ice and coal, and that both before and after the making of the lease, the appellants used the pier and the scales which they had so erected.

They were, therefore, after the making of the lease, while such use continued, in the possession of the pier jointly with the defendant Hesdorf. Indeed, the only one of the appellants who was examined on the trial, did not attempt to deny the possession and use of the pier down to about November 1st. The dispute is, whether the possession of the appellants then ceased, or continued and existed at the time of . the loss. The accident happened on that part of the pier which had been used by the appellants. If the appellants were in possession of the pier when the accident occurred, they were clearly liable, irrespective of the question of ownership. The agreement that Hesdorf should keep the pier in as good condition as it was when the lease was made, does not affect the case. In the first place, Hesdorf was only to keep it in as good condition as it was at the time the lease was made, and the proof shows that it was in bad condition at that time, and so continued. Hesdorf was not to put the pier in good order, but to keep it in the same condition that it was in when the lease was made; and it does not appear that it was in any worse state when the accident happened than it was in when the lease was taken. However this may be, the undertaking of Hesdorf in that réspect is a matter solely between him and the appellants, and cannot release tne latter from their liability (growing out of their possession) to strangers. It may give them a claim for redress against Hesdorf, but that question does not arise here.

Hahn, a witness for the plaintiff, testified that on the 24th oí . November, 1864, which was after the accident, he had a load of coal carried from that pier to his yard; and John Wood, who weighed the coal, swore that it was weighed with the scales which the appellants had erected.

William Duane, another witness for the plaintiffs, stated that at and after the accident, these same scales, with which he had seen the appellants weigh ice, were yet on the pier. This was some evidence to show that the appellants then continued in possession of the pier, and if it be said that there was a conflict of testimony upon the point of possession, because one of the appellants swore that he thought the scales were removed about the first of November,” that presented a question of fact, of which the justice’s finding is conclusive. Besides, although one of the appellants swore that they had sold the pier, and had delivered a written conveyance of it, they did not produce the instrument, nor disclose its terms, nor did he swear that by the conveyance they had transferred anything except the title to the pier, and for aught that appeared, the appellants may not have parted with the right to use the pier, which they reserved by the agreement with Hesdorf. In the absence of such proof, I think the justice was justified in concluding that the appellants were in possession of the pier when the accident occurred; and if that be so, the question of title to the pier is immaterial, even if the appellants were in a position to raise that point. But they are not. They did not set up any such defence by way of answer, nor give the undertaking required by § 56 of the Code; and, therefore, under § 58, they are precluded from raising the question of title to the premises.

I think the judgment should be affirmed with costs.  