to him, (which was to be South ftreet,) and another of at" ALBANY,

x 'teb. 1804.

lead 2.5 fe«t, along the whole weft fide of the fame lot, and v _»- Y n«_' of the ftreet of 70 feet. The fame to be and remain public Corporation, ftrccts; in confideration of upholding,, maintaining, and Richard Scott*. ■keeping of which, in good and fufficicnt repair, he was to have all wharfage Sec. accTtiing or_arifing, by or from the fame, fronting the Eaft River, or by or from any part thereof!

Murray accordingly built the wharves and ftrcets, fpecified in the grant, and alfo, undeT the direction of the corporation, a pier running in front of South ftreet, into the Eaft River, the fouth weft fides of which, and of the wharves and ftrects he had erected, are bounded by, and in a line with Wall ftreet flip, which runs in front of Wall ftreet,. and the wharf of 25 feet, built along the fouth weft fides o£ South ftreet, and the lot granted by the deed of 10th May, 4797, to John Murray. This pier, fo erected, was not onlyoppofite to the water-lots mentioned in the indenture of 1797, but ran about five feet more to the fouth weft, upon lands within the bounds ef the city, as exprefled in its charter, and oppofite to the wharf, covenanted in the grant, to be built by Murray, which land however, was not- granted tothe corporation by their charter.

The pier, from the time of its being made, had been upheld by Murray, and no grant of a common intercft in it had been made by the Mayor, Aldermen and Commonalty, agreeable to the aft of the Legiflature already recited.

The fole queftion was, whether the defendant, to whom by mefnc alignments the rights of Murray had been conveyed, was entitled to- the wharfage on the fouth-weft fide* of the pier, which ran in front of the five feet of the city lands? If he was, then a non-fuit to be entered..

Riggs for the plaintiffs. The infule of all public flips have been conftantly referved in the Corporation grants for the fake of convenience to the city, that its fupply by marketboats, &c. might not be impeded. They are under the controul of the plaintiffs, and have, in many inftances, as in the ^prefent, been widened that they might be the more efFectu«»My cleanfed by the tide. For this purpofn, in the a<H of '.Of?, Albany, the piers (which form the flips) are under the direftionof —,_** _i— x the Corporation. By this aft a grant to the plaintiffs of the Corporation, ]antj> on wn;ch fae new pierS) in front of South-ftreet, were Rkhird Scott, to be erefted, mult neceflarily be implied, for they are au"■ thorifed to grant a common intereft in them, to the proprie

tors of lots in front of which South-ftreet ran, according to the refpeftive widths of the fame, under fuch reftrictiom and regulations as the Corporation may think proper. They could not grant what they had not. Befides this implication is acknowledged by John Murray. He, therefore, and thofe under him, are eftopped from controverting it. He built under an ordinance exercifing the right of an implied grant, by making a refervation, in the true fpirit of all the former grants of the Corporation, and for the fame beneficial purpofes. It may further be obferved that, by running a tine from the extreme fouth-wefterly point of John Murray's k*» it will not ftrike the place for wharfage at which the plains tiffs infill on aright, "" #'-*»':

Troup and Hamilton contra. The aft gave no beneficia/ intereft to the Corporation. They were (imply truftees, of rather attornies to grant to others a right in confideration of a fervice or duty performed. This duty was the erecting the pier and created a confideration for the grant. Therefam therefcrving a portion of the emoluments was, fo far illegal and void ; for a truftee cannot take to himfelf, and withhold from his cejlui que truft, part of the fubjeft of the tnrih Allowing then an intereft to have pafled by implication, it was a truft. Then, although the aft authorizes them to grant under fuch reflriftions and within fuch limits as they may think proper, ftill this is no more than a power to regulate the mode and place of enjoyment; for reftriftion, can never fignify a right of acquiiition. To fhew how completely the building of the pier was the confideration for the wharfage; who ever did ereft was to have the profits; and, on this prill* ciple, when made by the Corporation, after negleft of the proprietor of the lot, they were, on performing what he was to have done, to ftep into his place, with a full title to wharfage. We admit we have no right to wharfage in the flip, becaufe the wharf there, was on foil die property of the Corporation, and they might, in that inftance, referve. The pre- AT BANY, fent refervation is a manifeft attempt towards a breach of _*>-.,-<*_/ trufl, at the expenfe of the object for whom it was created. Corporation, The action is for money had and received, the court, there-- Richard Scott. fore, will recognife all equitable rights which we may have." We cannot be eftopped by the ordinance for we are not parties to it by fealing and figning.

Riggs and Harrifon in reply. This is a caufe in which the public convenience of the city of New-York is deeply intexefted; therefore, the act and grants mult be liberally conftrued, with that object always in view. For public benefit was the caufe of the refervation of wharfage and flipage, on the infide of public flips, originally made. This would be entirely defeated by the defendant's claim, for if he has a right to wharfage on the fide of the pier next to the public flip, he will have a right to lay a veflel outfide of that, fattened to the pier, and another outfide of that, fo as to obftruct, if not entirely fill up the accefs to the public flip. This fliews die neceffity of implying by the act a grant to the Corporation of the foil under-water beyond the 100 feet mentioned in their charter. The contraction put on the words "restrictions," &c. cannot be correct, for the mode and place of enjoying wharfage rights is, by an cxprefs diftinct law, under the regulation of the harbcur-mafter. In the rights, as exprefled by the ordinance, there is an ample consideration for building the piers, for the pcrfons thus doing fo, have the emoluments arifmg from the fides adjoining to private property; as in the prefent cafe, thofe on the north-eaft fide within the bafon. This is further proved by the fenfe of the Legislature, exprefled in an additional claufe when the act of 1T93 was re-enacted; previous to which time, the proprietors of lots were entitled only to a community of wharfage in front of their properties; but, by the claufe alluded to, the Corporation were impowered to grant, under the reftrictions we contend for, that community of intereft; mentioned in the law.

The counfel feem to forget that a man may be eftopped by his actions as well as by his deed. 1 Living no original inALB VNY, tereft of his own, Murray a£ts under our title, fuch as it is,

Kb. 1804. . . TM

v _r- ~ -»_' and cannot now be allowed to difpute it. .

Corporation, pcr cUrjanij delivered by Livingfton, J. This is an z&ion Kichjrd Scott. for money had and received by the defendant, as wharfage ___ .^ ^ vej^]^ ]ying in what the plaintiffs call a flip, adjacent to that part of a pier which (lands oppofite Murray's wharf. From the form of aclion the plaintiffs muft fhew a tide Hi them to demand this money. It is, therefore, unnecefiary to enquire whether it belongs to the defendant or not. Tfcc Corporation can have no fuch right, in as much as the land, on which the pier is erected, was never granted to them, nor was the foil under the water where the veffel lay, tor which this wharfage was paid. No implied grant is contained in the sift of the legiflature. The corporation are only to grant as attornies of the public, in cafe piers are funk. That this is to be done under certain reftri&ions and regulations means, not that they fhall have a right to referve the wharfage to thcmfclves, which is to be theirs only in cafe of-default m the owners of the lots in finking piers, but that they are to regulate in what manner the right to wharfage (hall be enjoy* ed. Nor does the refolve of the Common Council of the 1ft of June, 1801, make adifFcrcnce.Thcrefervation therein contained, if in an indenture, might have been binding on the defendant; but,the corporation having exceeded theirpowersia mak^ ing this refervation in a refolve of this kind, it cannot be bind\ ing on him. They had no right, in this way, to impofe any terms they pleafed, or they might arbitrarily have deprived the owners of lots of the right, which the Legiflature intended they fhould have, of finking thefe piers. It cannot, therefore, be regarded in the light of a contract •, for die defendant had a right to make thefe piers and bridges without thereby functioning any terms which might thus be impofed on him. Nor can it be faid that the Corporation, not having executed the powers veftcd in them by the aft, the individual has no right to receive the wharfage. This would be to take advantage of their own wrong and negleft; nor.does it/ollnv, as has already been obferved, that the money belongs to tii? Corporation, if it be admitted that the defendant was wrong in taking it.

This is no flip, which is an opening between two pieces of Ai'?A?IY* land or wharves. This pier extends into the Eaft-river and is ^v-«>/ 2D feet from the fide of die flip. The grant to John Murray J^n Bi.ggt of May, 1797, is alfo important, for by this he is entitled to Ne/f"Yorfc ,nt the wharfage of 98 feet. ,

It is the opinion of the court, that the defendant have judgment.

John Blagge against the New-York Insurance
THIS was an adxion on an open policy of afiurance, dat- Property

* l * warranted to

ed the 18th of May, 1799, at a premium of 10 percent, for bencmml, the fum of 20,000 dollars, on the cargo of the (hip Flora, have every docJames Ix)vett, mailer, at and from Carthagena, or any other ^^"iing'o port on the Spanifh main to New-York. The inftrument con- ,treati" »nd,the

'r law of nations

uined the ufual claufc againfl illicit trade, and at the bot- to prove its

." . neutrality, but

torn the following memorandum was written. it mult not be

"Warranted American property proof of which if requir- withnanynpa« ed to be made in New-York rifk of feizure or deten- £"m\htYt5c°TMi

« tion in port excepted." tral character.

T».n c r If under lueh a

Rifk of feizure, &c. was in a feparate line, but there warranty on was not any flop between the words. From the cafe made, w"rd cargo apit appeared the mailer of the Flora was formerly a joint projuccd^efs owner with the plaintiff in a fchooncr called the Betfey, and lll)"*< h"m'" liad, in February 1798, failed in her to La Guira widi a the alfured cargo, in which they were mutually interested. That on his age irom ab..ianrival there the market was overftocked, and, hearing that t'/y'JJew' that the port of Carthagena was opened for the admiflion of neu- x&,!~ J*&ft^* ters, he proceetled to that place, off which he got on fhore. neutral funds. I lis information proving untrue, he was, on being carried into the harbour, feized and condemned for approaching the coaft, with a defign to trade, contrary to law. After a very tronfiderable time, he, on an appeal to the Vice Roy, obtained a reverfal of the fentence, and an order for reilitution. During his (lay, he became acquainted with one Thomas An■ dtew Thorres, who propofed to him a fyflem of commercial Vivtercourfe, for the purpofe of introducing into Carthagena goods from the United States in American bottoms, under the fraction of the Royal order of His Molt Catholic Ma

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