Philadelphia & R.R. Co. v. City of New York

• Decision Date: 01 March 1889
• Citation: 38 F. 159
• Parties: PHILADELPHIA & R.R. CO. et al. v. THE MAYOR, ETC., OF NEW YORK. [1]
• Court: U.S. District Court — Southern District of New York

38 F. 159

PHILADELPHIA & R.R. CO. et al. v. THE MAYOR, ETC., OF NEW YORK. ^[1]

United States District Court, S.D. New York.

March 1, 1889

R. D Benedict, for libelant.

Henry R. Beekman, for respondent.

BROWN J.

Section 6, subd. 2, of the act of 1871, c. 574, gives the department of docks exclusive charge and control of the wharf property belonging to the corporation, including all wharves thereon now owned by the corporation, 'the said department to have exclusive charge and control of the repairing, building and maintaining and protecting said property. ' This specific provision makes it the duty of the department of docks to maintain and keep in repair the wharf on the east side of Blackwell's island, although the use of the dock is solely for the benefit of the department of charities and corrections, and, like all other property appropriated to the use of that department, is in its general 'custody and keeping.' The title to the property is still in the city. There are many cases in which the city has been held liable for failure to keep the docks in proper repair since, as well as before, the act of 1871. Kennedy v. Mayor, 73 N.Y. 365; Heissenbuttel v. Mayor, 30 F. 456; Macauley v. Mayor, 67 N.Y. 602, and cases there cited. These decisions could only proceed upon the view that the department of docks was regarded as the agent of the municipality in performing the various duties devolved upon it by the act of 1871. In the case first cited the court say 'The city was charged with the duty of keeping the dock in a safe condition. ' The wharf, in this case, was not indeed, for the use of the general public but it was for the use of the department of charities and corrections, and of all persons and boats that should have occasion to come to the wharf in the business of that department, or at their invitation; and such is the fact as respects the libelant and his boat. He went to the wharf with his canal-boat, to deliver a load of coal for that department. He moored his boat along-side, fastened to the spiles in a way not unusual, and sufficient, had the spiles been in proper condition. The tide there runs strong, and during the ebb the northerly spile was pulled out by the force of the tide pressing against the boat, so that the boat broke adrift and afterwards sank. The wharf was about 25 years old. There is no proof of any reasonable and proper attention to the repair of the dock, or of...