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Feb. 1804.

V.

ALBANY, of the plaintiffs of the 29th of January 1800, their procuring infurance on the unauthorized voyages, and their reCodwife, &c. ceiving and felling the cargo of Molaffes he brought from John Hacker. Havanna to New-York. The fubftance of these converfations was, that Mr. Ludlow believed Mr. Hacker an honeft man, that he did the beft for their intereft, and that the only fault he found was his not writing. When these converfations took place does not precifely appear, further, than that one was about the 6th of February, 1800, the other in the the spring of that year. The letter of the 29th of January is to nearly the fame effect; containing a declaration that, all the fault they found, was the defendant's omitting to write to

them.

It must be remembered, that at the time of these converfations, and of writing the letter of the 29th of January, it does not appear that the plaintiff, knew of his having actually committed a breach of orders. They only knew he contemplated it when at fea on the 25th of November, in the event of his not meeting at Havanna with advice from them. This cannot then be construed into an approbation of conduct, of which they probably were ignorant. But were it otherwise, the approbation relied on to excufe mal-conduct, where by parol merely, ought to be unequivocal and explicit; and a mere declaration of a belief in the honefty and integrity of the defendant, and a refufal to complain of his conduct cannot be fufficient. Many an honeft man has committed errors which have rendered him liable in damages, and many an injured one has refufed to complain.

The acts of the plaintiffs remain to be confidered. Their procuring insurance on the unauthorized voyages, and their receiving and felling the molaffes. I can discover no principle on which either of these acts can be conftrued into an adoption of the conduct of the defendant. It would be a regulation ruinous to commerce, if whenever a portion of a merchant's property is facrificed by the unauthorized acts of the mafler of his fhip or confignee, that he should be obliged to jeopardise the remainder, before he fhall be entitled to a recovery in damages. In the prefent inftance, the owners' property, in neither the veffel, her cargo, nor her earnings,

Feb. 1804

was in any wife changed by the conduct of her mafter. ALBANY,
They were, therefore, perfectly correct in what they did,
and their right to recover remains unimpaired. I am of opin- Corporation
ion the defendant take nothing by his motion.

The Mayor, Aldermen and Commonalty of the
City of New-York, against Richard Scott.

V.

Richard Scott.

The act of the legislature, of 1798, re-enacted on the 3d of

THIS was an action commenced in the Juftices' court of April, 1801,

contains no im

the foil under

the city of New-York, to recover 18 dol. 50 cts. for wharf- plied grant of age. The fuit being removed into the Supreme Court, a ver- water, therein dict was, by confent, entered for the plaintiff, fubject to the the corporation opinion of the court, on a cafe, which was fhortly this.

mentioned, to

of New-York. They are under

attornies for

refervation in

bye law, of

grants, made

The lands which the corporation of New-York, under that act, only their charter hold, on Manhattan Island, and within the ci- the public. The ty, extend to low-water mark, and four hundred feet beyond their refolve or that, into the Eaft River. To these are annexed," the right, June, 1801, of ❝ benefit and advantage, of all docks, wharfs, cranes and flips, the slipage arifing from piers, "or small docks within the city, with the wharfage, cranage erected under "and dockage, and all iffues, rents, profits and advantages, by them, in "arifing, or to arife or accrue, by, or from, all, or any of them." that law, is By an act of the legislature, paffed on the 7th of March, void. The cor1793, it is declared, that "all the right, title, intereft, claim right to slipage on the piers, ❝ and demand, of the people of this ftate, of, in, and to all running into ❝lands, at any time heretofore left for streets or highways, in front of "in the city of New-York, by any perfon or perfons whom- South treet. A "foever, fhall be, and hereby is vested in the Mayor, Alder- val or vacancy "men and Commonalty of the city of New-York, and their piers. In an ac"fucceffors, for the use of streets and highways."

In the various grants by the corporation, of their waterlots on the north-easterly fide of the coffee houfe flip, they had given in fee, the right of wharfage in front, and in confideration of erecting certain piers, given to their grantees for 20 years, the wharfage &c. of the fouth-wefterly fides of fuch piers, provided they should not grant away the waterlots on that fide, which they referved to themselves a right to do, in which cafe, the wharfage on the south-westerly fide was to cease.

The corporation having granted away the whole of the Land to which they were entitled, under their charter, appli

poration has no

the East River,

slip is an inter

between two

tion for money had and received, the plain

tiff mutt thew right in him

a

felf.

Feb. 1804

V.

ALBANY, ed in April, 1798, to the legislature, for an act to authorize them to run flreets or wharves, of 70 feet width, in front of Corporation, the water-lots already granted. This, by a law of that month Richard Scott. and year, (re-enacted on the 3d of April, 1801,) the legisla ture was pleased to grant; and by the fame act, the propri etors of lots, on the front of which, the ftreets or wharves might run, were to fill them up, and make piers, according to the directions of the corporation. On non-compliance, the corporation were to be at liberty fo to do, and receive the wharfage to their own ufe. It was alfo farther provided, that the corporation might grant to fuch proprietors in fee, a common interest in such piers, in proportion to the breadth of their respective lots, under fuch reftrictions, and: within fuch limits as the Mayor &c. might deem just and proper:

In purfuance of the authority, conferred by this act, the corporation laid out a ftreet, called fouth ftreet, in front of the lots they had granted, joining the East River, and on the first day of june 1801, made a bye-law, or ordinance, by which they ordered the refpective owners of lots, fronting and bounded on South street, from the Wall Street flip to the Fly-Market flip, to make a pier on the north east fide of Wall street, and complete it a ccording to the directions therein given, before the firft day of November 1802; on doing which, the corporation would grant the piers to the owners of the faid lots, "referving in the faid grants, the exclufive

right in the corporation of this city, of wharfage and flip"age, on the fide of each pier, adjoining a public flip, and "that the faid piers be, in all refpects, confidered as public "ftreets or highways, and maintained and kept in repair, by "the grantees, their heirs and affigns."

Previous to the paffing the act of April, 1798, the corporation had laid out the plan of South street, and had granted to the proprietors of lots, bounded by the Eaft River, the vacant water-lots between them and South street.

Among the grants thus made, there was one the 10th of May, 1797, to John Murray, under whom the defendant

claimed.

By this grant, Murray was to make a wharf or ftreet, of. 70 feet in width, along the whole front of the lot, granted.

Feb. 1804.

、.

to him, (which was to be South street,) and another of at ALBANY, least 25 feet, along the whole weft fide of the fame lot, and of the street of 70 feet. The fame to be and remain public Corporation, streets; in confideration of upholding, maintaining, and Richard Scott keeping of which, in good and fufficient repair, he was to have all wharfage &c. accruing or arifing, by or from the fame, fronting the East River, or by or from any part thereof.

Murray accordingly built the wharves and ftreets, fpecified in the grant, and also, under the direction of the corporation, a pier running in front of South street, into the East River, the fouth weft fides of which, and of the wharves and streets he had erected, are bounded by, and in a line with Wall street flip, which runs in front of Wall street,. and the wharf of 25 feet, built along the south west sides of South street, and the lot granted by the deed of 10th May, 1797, to John Murray. This pier, fo erected, was not only opposite to the water-lots mentioned in the indenture of 1797, but ran about five feet more to the south west, upon lands within the bounds of the city, as expreffed in its charter, and oppofite to the wharf, covenanted in the grant, to be built by Murray, which land however, was not granted to the corporation by their charter.

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

The fole question was, whether the defendant, to whom by mefne affignments 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 infide of all public flips have been constantly 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 instances, as in the prefent, been widened that they might be the more effectually cleanfed by the tide. For this purpofe, in the ad of '98,

Feb. 1804.

V.

ALBANY, the piers (which form the flips) are under the direction of the Corporation. By this act a grant to the plaintiffs of the Corporation, land, on which the new piers, in front of South-ftreet, were Richard Scott. to be erected, must neceffarily be implied, for they are au thorised to grant a common intereft in them, to the proprie tors of lots in front of which South-ftreet ran, according to the refpective widths of the fame, under fuch reftrictions 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 estopped 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 line from the extreme fouth-westerly point of John Murray's lot, it will not strike the place for wharfage at which the plaintiffs infift on a right.

Troup and Hamilton contra. The act gave no beneficial intereft to the Corporation. They were fimply trustees, or 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. Therefore, the referving a portion of the emoluments was, fo far illegal and void; for a trustee cannot take to himself, and withhold from his ceftui que truff, part of the fubject of the trust. Allowing then an interest to have paffed by implication, it was a trust. Then, although the act authorizes them to grant under fuch reftrictions and within fuch limits as they may think proper, still this is no more than a power to regulate the mode and place of enjoyment; for restriction, can never fignify a right of acquisition. To fhew how completely the building of the pier was the confideration for the wharfage; who ever did erect was to have the profits; and, on this prin ciple, when made by the Corporation, after neglect of the proprietor of the lot, they were, on performing what he was to have done, to step into his place, with a full title to wharfage. We admit we have no right to wharfage in the flip, because the wharf there, was on foil the property of the Cor

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