
    Gerald Cannavan v. Edward E. Conklin, Charles Scholey and James Shindler, impleaded, wíth Herman Hesdorf.
    A party in tlis actual possession of a city pier is responsible in damages for injuries ari-ing from its bad condition, irrespective of the question of ownership fond in suits ter such damages, the possession of the defendant being shown, the question of title does not arise.
    An agreement between A. and B., joint possessors of a. pier, that B. sha.ll keep it in good repair 1= no defence to an action against A. by a. third party to recover damages for an injury arising from its defective condition.
    The ov/ners of a. pier in the city ofJTew York leased it to a third party, who agreed to keep it in as good repair as it then was, reserving to themselves a right, to use and occupy as much of the pier as their business might require ; and under toi agreement continued to use the dock,—-1102, that, this was a joint possession, rendering them jointly liable with their lessee for the death of a. horse caused by the defectivo condition of the pi :-.'.
    Afreal by the defendants Edward E. Conhlin, Charles Seh-'-lcy and Jam-.-s Shindier from-the judgment of the District Court of the Seventh Judical District.
    The plaintra brought suit against the defendants for the loss of a horse by falling througli a pier at the foot of Fnriv-tbh 1 street, 3ST. E., in the city of Few York. Tho accident .-cc.rr. • on the 24th ATovember, 1864, and was shown to have oomiv- -2 througli the weakness of the supporting beams, while the plunking appeared to be sound. The appellants put in eviMmu’.' :.. i agreement between themselves and the defendant ITesdorfl-.M..!:,/ tho pier for seven months from October ist, 1SG1, to the hr:; ; * ‘‘ he to keep the said dock in good repair as it now is, fk..- ■ Ad “ Conklin &Co. reserving tho right to use said dock, and ■ y.;¡,v “ as much of pier as their business may require, and in on.-v rA-y k want to make improvements on said pier, or in any other way “ occupy the whole of it, in that case they are to pay back,” we.
    The appellants gave evidence on the trial below to show that they had not afterwards occupied the dock. On the par; of the plaintiff it was shown that the pier was used by the firm of Conkliñ & Co. for the receipt of coal and ice, and, that they had scales on the dock, which remained there down to the line - f the accident, and were used but a little while before by t!v:;.
    The District Court rendered a judgment in favor of the pk::¿tiff for the value of the horse, against all defendants. The defendants Conklin & Co. appealed.
    
      Titus B. Eldridge, for appellants.
    
      Alexander H. Reavey, for respondent.
   By the Court.

Cardozo, J.

The case presents only one question worthy of consideration.

The action in the court below was to recover for the loss of horse, which was killed on the 24th of ^November, lSGt, by f.i”ing through the pier at the foot of 43d street, on the 2\ov-:i Biver.

The death of the horse, its value, and that the loss hupp.-m ■'* by reason of the negligence of the persons in possession of ‘he pier in suffering it to he in a dangerous and insecure cm;.fit: =:i. are sufficiently proven. The question is whether tho appeih'.m - occupied that relation to tho pier when the accident oevxm ■ as to make them responsible for it,.

Oil the first of October, 18G4, the -appellants entered ira-." araoe.ivj*.:; wirh their co-doi'c-r.dant Hesdorf, by whra; let nn rai, tho foot off 43d street, Form for the term of seven months from 1st day of October inst. to May 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 proof establishes that the appellants, before the making of the 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 their possession and use of the pier down to Movemher 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 has been used by the appellants. If the appellants were in possession of the pier when the accident occurred, they are clearly liable, irrespective 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 pooof shows that it was in had 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 respect is a matter solely between him and the appellants, and cannot relieve the 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 twenty-eighth of Novemher, 1861, which was after the accident, he had a load of coal carted from that pier to his yard ; and John Wood, who weighed that coal, swore that it had been weighed with the scales which the appellants had erected, William Duane, another witness for the plaintiff, stated that afc and after the accident these 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 had been removed about the first of November,” that presented a question of fact upon which the justice’s finding is conclusive. Besides, although one of the appellants swore that they had sold the pier, and liad 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 was shown, 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 that 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 becomes 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.

Judgment affirmed.  