
    Henry W. Thomas, Adm’r, Resp’t, v. Gerd. H. Henjes, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 1, 1892.)
    
    Negligence-Pier owners.
    W. and defendant owned adjoining docks, and upon W.’s dock was a. derrick which was used in unloading boats at defendant’s dock. Defendant let the dock to M. for unloading stone, and charged so much a’boatload. There was no evidence that when he let it only his part was to be-used, or that any arrangement was made with. W. Held, that the jury-might find that those who came to the dock to deliver stone to M. came-by defendant’s invitation, and as to them the derrick was in defendant’s possession, and if it-was- unsafe, and caused injury to a person having aright to be on the dock, defendant was liable if he knew, or ought to have known, of its condition. 0
    Appeal from judgment of the supreme court, general term,, second department, affirming judgment in favor of plaintiff,, entered upon verdict of jury.
    
      H. B. Hubbard, for app’lt; James C. Church, for resp’t
    
      
       Affirming 42 St. Rep., 28.
    
   Per Curiam.

The line between the property of West and the-defendant passed through the dock longitudinally. Boats which came to the dock seem to have been moored along the outer side of the dock towards the bay, alongside the defendant’s part of the.dock. The defendant let the use of the dock to Morrissey for unloading stone and charged so much for each boat load. There was no suggestion when he made the bargain with Morrissey that any one else had any interest in the dock, or that only the part actually owned by the defendant was to be used. The relation between West and the defendant in respect to the occupation of the dock is left wholly unexplained by the evidence. It does not appear that West ever used his share of the dock for unloading, or received anything for its use, or that any arrangement whatever existed in respect to its use between him and the defendant. Morrissey had a right, under the circumstances, to assume that his privilege extended to the use of the whole dock, in the customary way. The jury might properly find upon the-evidence that those who came to the dock to deliver stone to Morrissey came by the defendant’s invitation, and as to such persons-the dock at the point where the boat was moored, including the-part occupied by the derrick, was in the possession of the defendant This imposed the duty upon the defendant to keep the-part of the dock where the boat was moored in a reasonably safe-condition, and if the derrick, although on the part of the dock owned by West, was an unsafe structure and liable to cause injury to persons having a right to be on the dock, and did, in fact, occasion injury to a person so situated, the defendant was legally responsible if he knew, or ought to have known, of its unsafe-condition. The derrick that injured the intestate was, as the evidence tends to show, unsafe and dangerous. The defendant did not erect it, nor did he receive any profit from its use. In fact it-appears that it never had been used except on one occasion about, a year prior to the accident in question. The son of the defendant, erected it at his own expense and for his own purposes.

The question of the defendant’s liability does not, we think, turn upon the question whether the derrick was on West’s side of the dock, or whether the defendant erected it or used it

Morrissey and those who came to the dock to deliver stone by the permission of the defendant under the license'to Morrissey had a right to assume, in the absence of explanation, that the whole-dock was in the possession and under the control of the defendant, and if they were injured by the unsafe condition of the dock without negligence on their part, it would not constitute a defense to show that the legal title to the part of the dock where the unsafe condition existed was in a third person, or that in fact the-defendant had no legal right to go upon or repair it

The defendant assumed a responsibility in thus using the dock commensurate with the relation which they were justified in assuming he had to it

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Earl, Ob. J., not voting.  