56 N.Y. 129, Clancy v. Byrne

Citation:56 N.Y. 129
Party Name:JAMES CLANCY, Respondent, v. GEORGE C. BYRNE, Appellant.
Case Date:March 24, 1874
Court:New York Court of Appeals

Page 129

56 N.Y. 129

JAMES CLANCY, Respondent,


GEORGE C. BYRNE, Appellant.

New York Court of Appeal

March 24, 1874

Argued Feb. 10, 1874.

Page 130


Ira Shafer for the appellant. Plaintiff cannot maintain an action on defendant's covenant with his lessor to make ordinary repairs. (Taylor's L. & T., § § 91, 155, 293;

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Dolph v. White, 2 Kern., 296; Hornbeck v. Westbrook, 9 J. R., 73.)Defendant is not liable on the ground of erecting and maintaining a nuisance. (Mayor, etc., v. Bailey, 2 Den., 433; Fish v. Dodge, 4 Id., 311; Taylor's L. & T., § 784; 4 T. R., 311; 3 H. Black., 349.) Defendant was only liable for a breach of his lessor's covenants while he was in possession. (Taylor's L. & T., § § 452, 620, 680; Tongue v. Pitcher, 8 Lev., 295; 4 Mod., 71.) Plaintiff should have been nonsuited on the evidence. (Hartfield v. Roper, 2 Wend., 615; Spencer v. U. & S. R. R. Co., 5 Barb., 337; Haring v. N.Y. & E. R. R. Co., 13 Id., 9; Mackey v. N.Y. C. R. R. Co., 27 Id., 528; Bieseigel v. N.Y. C. R. R. Co., 33 Id., 429.) Plaintiff knew that the pier was in a dangerous condition and his negligence deprived him of his right of action. (Warner v. N.Y. C. R. R. Co., 44 N.Y. 465-471; Spencer v. U. & S. R. R. Co., 5 Barb., 337; Ernst v. H. R. R. R. Co., 39 N.Y. 61; 35 Id., 9; Hartfield v. Roper, 21 Wend., 615; Davis v. N.Y. C. R. R. Co., 47 N.Y. 400, 402; Clark v. City of Lockport, 49 Barb., 580; Rathbun v. Payne, 19 Wend., 399; Johnson v. H. R. R. R. Co., 20 N.Y. 65; Rudolphy v. Fuchs, 44 How. Pr., 155; Baxter v. T. & B. R. R. Co., 41 N.Y. 502-506.)

John L. Hill for the respondent. Defendant was bound to keep the pier in safe and proper condition. (Davenport v. Ruckman, 16 Abb., 341; Housten v. Mayor, etc., 9 N.Y. , 163; 5 Sand., 297; Congreve v. Smith, 18 N.Y. 78; Radway v. Briggs, 37 Id., 258; Congreve v. Morgan, 5 Duer, 495; Besson v. Suarez, 19 Abb., 65; Canovan v. Conklin, 1 Abb. [ N. S.], 271; Moody v. Mayor, etc., 43 Barb., 285; Clancy v. Byrne, 48 Id., 449; Irvine v. Wood, 51 N.Y. 224; Haskell v. Vill. Penn Yan, 4 A. L. J., 138; Sexton v. Zett, 56 Barb., 119; Weisenberg v. City of Appleton, 7 Am., 39.) Plaintiff is not chargeable with contributory negligence. (Johnson v. Belden, 47 N.Y. 130.) The pier was in bad condition when defendant leased it, and he was liable. (Besson v. Suarez, 16 Abb., 65; Anderson v. Dickie, 1 Robt., 238.)

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The important question in this case, arises upon the motion for a nonsuit, made when the plaintiff rested his case. It was based upon three grounds.

The first was, that the proof showed that the defendant was not in the possession of the pier, at the time of the accident. I think that such is the clear result of the proof. The witness Patten, was the agent of the Rhinelander estate, which owned the south half of the pier. He testified that the defendant, immediately on taking the lease of that half from that estate, relet it to the Hudson Steamboat Company, an old, established line; that the defendant did not occupy it; that the company did occupy it, and had occupied it for some years prior to "this time." By "this time," I infer, is meant the time of the accident. This testimony was not varied nor weakened, by the attempt to show that the defendant and the company were the same thing.

This state of facts presents the question of law, whether a lessee of premises, who is not in actual possession thereof...

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