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"The undersigned, for value received, hereby promises to pay to George Keister," etc.

Under those circumstances it could not be successfully contended that the note was not payable upon demand. The early case of Thompson v. Ketchum, 8 Johns. 190, 5 Am. Dec. 332, stated the common-law principle as follows:

"The time of payment is part of the contract, and, if no time be expressed, the law adjudges that the money is payable immediately. This is not only a positive rule of the common law, but it is a general principle in the construction of contracts."

See, also, B. E. & C. R. R. Co. v. N. Y., L. E. & W. R. R., 123 Ν. Υ. 316, 25 Ν. Ε. 499, 11 L. R, A. 116.

There can be no question but that, under well-settled principles of common law, the instrument in suit was a contract between the parties for the payment of the sum of money therein stated upon demand, and as between the parties the note was a complete and enforceable contract. The jury resolved the question as to consideration in favor of the plaintiff, and their verdict was not set aside by the court.

I think the judgment and order appealed from should be reversed, with costs, and that the plaintiff should have judgment against the defendant upon the verdict of the jury in his favor, together with the costs of the action. All concur.

NEW YORK DOCK CO. v. FLINN-O'ROURKE CO., Incorporated.
(Supreme Court, Special Term, Kings County. May 2, 1917.)

1. Navigable waters 39 (3) -Owner of lands under water has no right of access across other lands to sides of piers.

Owner of land under water to pierhead line, with piers thereon, though having right of access thereto over the waters of the East River in front thereof, held, on its motion for injunction pendente lite, not to have, by reason of such ownership, any right of access to the sides of the piers over lands under water in the private ownership of another.

2. Eminent domain 243 (2)-Adjudication of failure to establish property right held res judicata in injunction.

Adjudication pronounced by commissioners, and embodied in the order of the court in proceeding to condemn land under water in a slip to pierhead line, that owner of like lands on either side, with piers thereon, who appeared and asserted rights, failed to establish any property right in the parcel taken, held, on motion for injunction pendente lite, in suit by the pier owner, claiming right of access over the waters in the slip, to be res judicata.

3. Injunction 137 (4) -For injunction pendente lite, right must be clear and free from doubt.

Right to injunctive relief must be clear and free from doubt, to justify granting of injunction pendente lite, which will unavoidably cause great expense and damage to defendant and delay completion of an urgently needed public improvement, especially where invasion of any rights of plaintiff which may be established on a trial can be compensated in damages.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

Suit by the New York Dock Company against the Flinn-O'Rourke Company, Incorporated. Injunction pendente lite denied.

See, also, 107 Misc. Rep. 190, 176 N. Y. Supp. 123; 181 App. Div. 956, 168 N. Y. Supp. 1121.

Davies, Auerbach & Cornell, of New York City, for plaintiff.
E. M. & Paul Grout, of New York City, for defendant.

BENEDICT, J. The plaintiff's motion for an injunction pendente lite should, in my opinion, be denied for several reasons.

[1] 1. The plaintiff has not satisfied me that it has any rights in the Montague street slip which are being invaded by the defendant. The plaintiff claims to own the land under water on either side of the slip out to the pierhead line, such land under water being in front of an adjoining upland owned by plaintiff. Upon its land are certain piers, which now form the sides of the slip, although for many years the sides of the slip were formed by the ferry racks maintained by the Union Ferry Company. The fee of the land under water in the slip itself, except perhaps for a narrow gore on the south side adjoining the north side of Pier 15, is owned by the city of New York, as is also the adjacent upland; title thereto for rapid transit purposes having been acquired by condemnation proceedings from the former owners, who held under grants from the city of New York and the state of New York. The plaintiff claims that it has the right to use the slip for purposes of navigation, including the mooring of vessels in the slip along the sides of its piers forming the northerly and southerly boundaries thereof. It claims this right not, as I understand, by virtue of any grant or express easement, but solely by virtue of the fact that the slip is part of the East River, and therefore a public highway, and that as an abutting owner it has an easement of access to its piers over the waters of a slip similar to the easements of light, air, and access which an abutting owner enjoys in a public street. There can be no doubt of plaintiff's right of access to its land under water and the piers erected thereon over the waters of the East River in front of the lands under water which it owns that is, from toward the center line of the stream-but I seriously question whether there is such a right of access as the plaintiff claims to the sides of piers erected on plaintiff's land under water when to reach such sides boats must pass over lands under water in the private ownership of others, especially when boats moored at such piers will necessarily lie over the lands of others. The ownership of the city of the land in question is private ownership, not ownership in a sovereign or governmental capacity. To support plaintiff's proposition might result, as it seems to me, in serious injustice. Thus the owner of a narrow strip of water front, having obtained a grant of the adjoining land under water to the pierhead line, might cover the whole of the land so granted with a pier and claim an easement of access to that pier, with the right to moor vessels for indefinite periods, to the prejudice of his neighbors on either side holding grants of the adjacent land under water. Or if we assume that one owns 100 feet of water front, say, with the land under water in front of the same to the pierhead line, the owners of the land under water on either side could, by building piers on their lands adjacent to the lines of his grant, claim the right to use the slip thus formed for access to their piers, and thus perhaps keep the slip almost continuously filled with ships, lighters, and tenders, to the practical extinction of the intermediate owner's right of access to his upland over his own land under water.

[2] 2. There is strong ground for saying that the question whether plaintiff has such rights as it claims in that part of the slip owned by the city is res judicata. In the Condemnation proceedings already referred to, the plaintiff appeared and asserted its alleged rights and sought compensation for their extinction, but the commissioners found that it "failed to establish any property right in parcel No. 1," and no award was therefore made to the plaintiff. This finding was confirmed by the Supreme Court at Special Term against the plaintiff's opposition. The plaintiff seeks to show that the condemnation proceeding did not include the rights which it now claims, although it covered the fee of the land condemned "free from all liens and incumbrances." The plaintiff cites in support of this contention certain observations made by the commissioners during the course of the hearings. But over against these remarks we have the positive adjudication, not that the rights now claimed by plaintiff were outside the scope of the proceeding, but that the plaintiff failed to establish any property right in the parcel taken. This adjudication, pronounced by the commissioners and embodied in the order of the court, is binding upon the plaintiff in this action, and I cannot go behind it to ascertain the views of the commissioners from their desultory remarks in the course of the proceeding. The opinion of Mr. Justice Kelly, rendered upon the motion to confirm the commissioners' report, clearly shows that he did not entertain any such notion as to the scope of the proceeding as the plaintiff now urges. N. Y. L. J. March 10, 1917, p. 2054. The question at issue here was directly involved and determined in that proceeding, and the defendant here is in privity with the petitioner in that proceeding, so that all the elements of an estoppel by record exist. In my opinion, no right in the nature of an easement of access to plaintiff's piers over the waters covering the land condemned, which would certainly be a property right, survived that proceeding, and plaintiff's right to navigate the waters of the slip is no greater than it would be if plaintiff's property were situated on the other side of the river, or at some other distant point.

[3] 3. With respect to plaintiff's claim to own in fee some part of the land on which the defendant's dumping structure is erected, it need only be said that there is a direct conflict between the affidavits presented by the respective parties on this point, except as to a boardwalk, which, I understand, is admitted to encroach upon lands owned by plaintiff. Assuming, however, that plaintiff does own the entire amount of land under water adjacent to the northerly side of Pier 15 which it claims, the strip is so narrow that it could not be

(182 Ν.Υ.Σ.)

used for navigation, or for access to said pier, without using also the waters over the land in the slip belonging to the city. Hence this situation does not in my opinion, call for injunctive relief. If it shall be proved on the trial that defendant has built its structures in part on plaintiff's land under water, this invasion of plaintiff's rights can be compensated in damages. Without undertaking to go into various other questions which suggest themselves, I think I have shown that the plaintiff's right to injunctive relief is not so clear and free from doubt as to justify the granting of an injunction pendente lite, which will unavoidably cause great expense and damage to the defendant and delay the completion of an urgently needed public improvement. The condition of the Special Term Calendar is such that the case can be tried before the end of May if the plaintiff desires to have it so tried.

Motion denied, with $10 costs. Settle order on notice.

(191 App. Div. 639)

UNION FERRY CO. OF NEW YORK AND BROOKLYN v. FAIRCHILD et al. (Supreme Court, Appellate Division, First Department. April 30, 1920.) 1. Pleading217(2) -Demurrer to answer reaches back to complaint.

Demurrer to answer reaches back to complaint, and allows examination thereof as to its stating facts sufficient to constitute a cause of action. 2. Wharves9-Lease construed to be of the part of a pier and bulkhead necessary to secure a ferry rack and bridge.

A lease, as described in the complaint, from the owner of a pier and bulkhead to a ferry company having a terminal in the adjoining slip, held, in view of the parties' rights, to be only of so much of the pier and bulkhead as was necessary to secure the ferry rack and bridge, and not to include as a separate element the right to use and occupy the waters of the slip, in which the pier owner had no property rights.

3. Wharves7-Ownership of pier in East River gives owner no right in slip at side in front of another's upland.

Owner of land under water in East River, with pier thereon, in front of its upland, incorporated by Laws 1840, с. 215, as a dock company, has by reason thereof no right in waters in a slip at the side, in front of upland of another, other than that of the public in the public waters, which right is made subject to the public use for ferry purposes, when a ferry, with terminal there, is established under franchise from the city.

4. Landlord and tenant114 (3) -Holding over after expiration of lease for years renews from year to year.

So long as the lessee remains in possession after termination of its lease for years, there is, by reason of the holding over, a renewal of the lease from year to year.

5. Injunction 26 (6)-Will not lie against maintenance of actions, where any available defense can be set up therein.

Plaintiff may not have maintenance of actions for rent enjoined, where any defense it has can properly be set up in such actions.

Appeal from Special Term, New York County.

Action by the Union Ferry Company of New York and Brooklyn against Julian P. Fairchild and others, permanent receivers of the Atlantic Dock Company. From a judgment sustaining demurrers to

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

four separate defenses, and overruling demurrers to two counterclaims (106 Misc. Rep. 324, 176 N. Y. Supp. 251), cross-appeals are taken. Reversed, and complaint dismissed.

Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, and MERRELL, JJ.

Forster, Hotaling & Klenke, of New York City (George P., Hotaling, of New York City, of counsel), for plaintiff.

Cullen & Dykman, of Brooklyn (Francis L. Durk, of Brooklyn, of counsel), for defendants.

The following opinion, written by the late Justice Philbin, and his last judicial work, is adopted unanimously by the court and handed down as its opinion on the decision of this case:

PHILBIN, J. [1] The demurrer of the plaintiff to the answer required an examination of the complaint to determine whether the allegations therein are sufficient to constitute a cause of action. Baxter v. McDonnell, 154 N. Y. 432, 48 N. E. 816. The defendants are the permanent receivers of the Atlantic Dock Company, hereinafter referred to as the defendant. The facts set forth in the complaint are as follows:

The plaintiff and its predecessor in title and grantor operated for several years prior to the year 1881, and the plaintiff does now operate, a ferry across the East River from the foot of Hamilton avenue, in the borough of Brooklyn, to Whitehall street, in the borough of Manhattan, under a franchise from the city of New York. The plaintiff's grantor was known as the Union Ferry Company of Brooklyn. It will be referred to as the predecessor. One of its directors was also a director in the defendant corporation. He was the chief executive officer and the dominant and controlling factor in the actual management of both the predecessor and the defendant. He continued to be the controlling manager of defendant until his death in the fall of 1915. Thereafter the trustees of his estate were as such, or individually, the dominant factors in, and in practical control of, plaintiff and defendant.

On November 5, 1890, the predecessor sold and transferred to plaintiff all of the property used in operating the ferry, including land and land under water at the foot of or adjacent to Hamilton avenue, and plaintiff entered into possession. As will later appear, the defendant at all the times mentioned was the owner of the pier and bulkhead adjoining the ferry on the southwesterly side thereof. It further appears by the complaint that after the plaintiff so acquired title it was represented to it by defendant that for many years preceding the said sale to plaintiff the predecessor had paid defendant for the right to use half of the ferry slip in the operation of the ferry, and which right and privilege defendant claimed was owned by it. Defendant then claimed that plaintiff should continue such payments.

Plaintiff, believing the statements so made and in ignorance of the fact that defendant had no valid claim, paid to defendant from November, 1890, down to about February 1, 1916, large sums of money,

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